Citation Nr: 21064956 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-20 628 DATE: October 22, 2021 ORDER Entitlement to an initial rating greater than 10 percent for a right heel plantar wart is denied. REMANDED Entitlement to service connection for an upper respiratory disorder (claimed as sinusitis) is remanded. FINDING OF FACT The Veteran's right heel plantar wart symptoms most closely approximate a single painful scar. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for a right heel plantar wart have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.27, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1966 to January 1968. He appealed a September 2017 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded for additional development in February 2021. In a September 2021 rating decision, the AOJ granted service connection for right knee and right ankle disorders. Those claims have been granted in full and are no longer on appeal. Plantar wart Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The September 2017 rating decision granted service connection for a right heel plantar wart and assigned a noncompensable rating from June 28, 2017 under DC 7819, which pertains to benign skin neoplasms. A March 2020 rating decision assigned a 10 percent rating from June 28, 2017, under DC 7819-7804. The Veteran seeks a higher rating. See September 2018 Notice of Disagreement. Hyphenated DCs, such as this, are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27. In the present case, DC 7819 instructs that benign skin neoplasms be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or impairment of function. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, DCs 7804 and 7819 were not changed by those amendments. Under DC 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. A September 2017 skin examination report noted the Veteran developed a heel wart in 1967. The Veteran had not received oral or topical medications for the condition or undergone any procedures within the previous 12 months. The examiner noted the wart affected less than 5 percent of both exposed body area and total body area. A January 2020 skin examination report noted the Veteran's complaint of intermittent pain in the right heel with prolonged standing or walking. The Veteran's wart had not been treated with medication within the past 12 months, nor had the Veteran undergone any treatment or procedure for the condition within the past 12 months. The examiner noted that less than 5 percent of total body area was affected by the wart, and no exposed body area was affected. The examiner described the wart as a hard callous growth with tenderness to palpation. A February 2021 foot examination report noted the diagnosis of the wart and the Veteran's report of some pain and discomfort at the bottom of the foot. A March 2021 skin examination report noted the Veteran's complaints of pain around the site of the wart. He received no medication, treatment, or procedure for the wart within the previous 12 months. The wart affected a total body area of less than 5 percent; no exposed area was affected. The wart measured 0.3 centimeters (cm.) by 0.4 cm. and was described as a callous area on the bottom of the right foot, heel area that was tender to palpation. A photograph of the wart was included with the reports and appears consistent with the description in the examination report. Additionally, a March 2021 scars examination report noted a single scar measuring 0.4 x 0.3 cm, which was tender to palpation. Based on the foregoing, the Board finds that a rating greater than 10 percent for the Veteran's plantar wart is not warranted. Throughout the appeal period the Veteran's wart symptomatology has resembled a single painful scar, which is consistent with the 10 percent rating assigned under DC 7804. The Board considered whether the Veteran may be entitled to a higher rating under another applicable DC, such as the present General Rating Formula for the Skin. As noted above, VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under DC 7806 which pertained to dermatitis or eczema, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (in effect from October 23, 2008 to August 13, 2018). Effective August 13, 2018, a new General Rating Formula for the Skin applies. See 38 C.F.R. § 4.118. Under this new formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (as effective from August 13, 2018). However, as demonstrated by the applicable DCs, the Veteran would not be entitled to a higher rating under either the old DC 7806 or current General Rating Formula for the Skin. Accordingly, entitlement to a rating greater than 10 percent for a right heel plantar wart is denied. REASONS FOR REMAND The Veteran seeks service connection for an upper respiratory condition claimed as sinusitis. See July 2017 VA Form 21-526EZ. The Veteran contends his symptoms began in service and have persisted following service. See November 2018 VA Form 21-4138. The Board remanded this claim in February 2021 to obtain an adequate opinion, instructing the examiner to expressly address the Veteran's November 2018 statement and to not rely solely on the absence of treatment to render a negative opinion. New examinations were performed in February and March 2021. An examiner diagnosed the Veteran with acute nasopharyngitis, and opined the condition was not related to service. The examiner reasoned that although the Veteran's service treatment records (STRs) showed treatment for intermittent sore throat and runny nose, there was no medical evidence to support a finding that his symptoms were related to service. She also found there was no evidence that the symptoms lasted longer than six weeks during service, which would further support that the Veteran had a chronic respiratory condition that began during service. However, in the examination report's record review section, the examiner noted the Veteran was treated for upper respiratory conditions and colds in April 1966, November 1966, January 1967, February 1967, and September 1967. It is unclear how the examiner reached the conclusion that the Veteran's symptoms did not last more than six weeks, given that it appears he received persistent treatment for upper respiratory symptoms throughout his two years of service. Further, aside from noting the Veteran's report of symptoms during and since service, the examiner did not address his assertion, and instead appeared to discount it by stating there was no medical evidence to support a finding that his symptoms were related to service. Accordingly, remand for a new opinion is warranted. The matter is REMANDED for the following actions: 1. Refer the claims file to an appropriately qualified clinician, other than the March 2021 examiner, for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's diagnosed upper respiratory disorders, including rhinitis and acute nasopharyngitis, had their onset during service or are otherwise related to service. In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. In this regard, the reviewing clinician should address the Veteran's November 2018 statement that his symptoms began during service and have continued since that time. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the above has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.