Citation Nr: 21067342 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 11-18 842 DATE: November 4, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for bilateral foot scars is denied. Prior to March 22, 2017, entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU) is denied. From March 22, 2017 to November 15, 2018, entitlement to a TDIU is granted. Effective November 15, 2018, entitlement to a TDIU is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran had three to four scars on the toes of his feet that were painful and tender with one scar that was unstable in September 2010; he did not have five or more scars that were painful or any unstable scars since September 2010 and none of the scars were at least 77 square centimeters. 2. The Veteran's service-connected disabilities meet the schedular requirements for a TDIU and from March 22, 2017 to November 15, 2018 they precluded him from obtaining and maintaining substantial gainful employment. 3. Prior to March 22, 2017 and beginning November 15, 2018, his service-connected disabilities did not preclude the Veteran from obtaining and sustaining substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent for bilateral foot scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804. 2. Prior to March 22, 2017, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. From March 22, 2017 to November 15, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. Beginning November 15, 2018, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to February 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs. In February 2017, the Veteran testified during a video conference hearing before the undersigned; a transcript of the hearing is of record. The Board remanded the case in July 2017, February 2019, and March 2020 for additional development. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [or] endurance." Id. quoting 38 C.F.R. § 4.40). The words "moderate" "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 1. Entitlement to an initial rating in excess of 30 percent for bilateral foot scars. The Veteran's bilateral foot scars are rated 30 percent disabling under Diagnostic Code 7804. The criteria for this code provide a 20 percent rating when there are three or four scars that are painful or unstable and a maximum rating of 30 percent when five or more scars are unstable or painful. 38 C.F.R. § 4.118. Note (1) for that code defines an unstable scar as one where, for any reason, has frequent loss of covering of skin over the scar. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) under that code provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Diagnostic Code 7801 provides a higher rating of 40 percent for scars other than on the head, face, or neck, that are deep and nonlinear and cover an area of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under Diagnostic Codes 7800-7804 are to be considered. 38 C.F.R. § 4.118, Diagnostic Code 7805. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Codes 7804 and 7805 were not changed as a result of the amendments. Diagnostic Code 7801 was modified but still retain the same surface area requirements for rating scars. The Veteran has essentially not reported any symptoms for his scars other than pain or tenderness. The evidence does not show that a higher rating is assignable. On September 2010 VA examination, the left foot scar was described as an ill-defined longitudinal left foot plantar surface scar over the fifth metatarsal head, and it was calloused over. Its measurements were approximately 2 cm x 3 mm and the scar was painful but there was no breakdown. The scar was also deep, meaning there was underlying soft tissue loss or damage, but there was no limitation of motion or function due to the scar. On the right foot there was a dorsal longitudinal foot scar between the distal fourth and fifth metatarsophalangeal joints that was linear and measured 5 cm x 2 mm. It was painful on examination but there was no skin breakdown or underlying soft tissue loss or damage. There was limitation of motion as the Veteran could not abduct toe numbers four and five, but there was no limitation of function. The toes demonstrated dorsiflexion/plantar flexion. A second scar on the right foot was on the longitudinal part on the plantar surface over the fourth metatarsophalangeal head and it measured 3 cm x 3 mm. The scar was painful on examination, had skin breakdown, and was deep. It was extremely painful, and there was a surgical wound that had been draining for the past two months. There was limitation of motion due to pain but there was no limitation of function. Edema, hypertrophic callus, and hyperpigmentation were also present. See September 2010 VA Examination. Records in January and February 2013 noted the Veteran's surgical scars were somewhat tender to palpation throughout the right fourth ray and right fifth ray with some hyperpigmentation and underlying subdermal scarring. June 2013 inspection of a postsurgical scar showed it was very well healed. The edema had decreased significantly to the foot and hyperpigmentation to the plantar aspect of the foot due to excessive pressure had come down a lot. There was no plantar prominence, only a small to the plantar sub fifth metatarsal head region and after debrided it did not reveal any scar tissue or focal hyperkeratotic base. A clinician noted in April 2015 and March 2016 that there was some tenderness to the dorsal scar area secondary to scar tissue and multiple surgical interventions. There was also a little bit of hyperpigmentation. See April 2016 CAPRI records. On March 2017 VA scars examination, the Veteran reported a history of having one painful and tender scar and indicated that it was difficult to wear shoes. The scars were not documented on the left foot, but the right foot had two scars. The scars were on the right fourth toe and the lateral side of the right foot with each measuring 3 cm in length. The scars impacted in his ability to work in that they resulted in limited standing and walking. See September 2018 CAPRI records. A June 2019 VA treatment record showed the Veteran had significant dense scar tissue to the dorsum from previous surgery. See June 2019 CAPRI records. On July 2019 VA examination, the clinician noted there were four painful scars on the Veteran's right foot. The first was on the plantar foot along the 4th metatarsal head and measured 1.5 cm x 0.3 cm, the second scar on the plantar foot along the 1st metatarsal head measured 1 cm x 0.1 cm, the third was on the dorsal foot along the 4th metatarsal and measured 4 cm x 0.2 cm, and the fourth was on the dorsal along the 5th metatarsal and measured 4.5 cm x 0.2 cm. None of the scars were unstable and there was no limitation of function or other pertinent findings. See July 2019 C&P Exam. A November 2019 VA examination also stated that the Veteran had painful and tender scars to the right foot due to multiple surgeries. When the examiner attempted to "point" at scars on the Veteran's foot "he just overreacted" and stated it would hurt if examiner touch it. See November 2019 C&P Exam. The September 2021 VA examiner stated the Veteran had four scars on his feet, with three on the left and one on the right, that were painful and tender to palpation. None of the scars were unstable and they measured 3 cm x 0.1 cm, 3 cm x 0.2 cm, 2.5 cm x 0.1 cm, and 3 cm x 0.2 cm. All of the scars had underlying soft tissue damage. The scars on the right foot measured 0.3 square cm and the scar on the left measured 1.45 square cm. See September 2021 C&P Exam. The bilateral foot scars were assigned the maximum schedular rating under Diagnostic Code 7804 based on findings of the September 2010 VA examination that showed the Veteran had three painful scars and one that was unstable. Subsequent records showed the presence of a fourth painful scar but none of the scars were found to be unstable. At no time did he have five or more painful scars with at least one scar that was also unstable, so a higher rating under Diagnostic Code 7804 is not warranted. The Board may, however, also consider other diagnostic codes. Although the record shows two scars were deep, only one was nonlinear and neither scar met the size requirement for a rating under Diagnostic Code 7801, so a higher rating under that code is not available. Some of the records also showed the 4th and 5th metatarsals had limitation of motion due to the scars but there was no limitation of function. Since there are no diagnostic codes related to limitation of motion of toes, a rating based on limitation of motion under Code 7805 is not available. The Board also notes that despite the presence of limitation of toe motion there was no limitation in function. For the reasons stated, a preponderance of the evidence is against a rating greater than 30 percent for bilateral foot scars for the entire period on appeal. Consequently, the claim must be denied. 2.-4. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his or her education and occupational experience, by reason of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the scheduler rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, individual unemployability benefits may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran had been capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities have met the schedular requirements for a TDIU since March 2010. His bilateral foot scars were rated 30 percent disabling since March 2010; his service-connected right foot/toes disability has been rated 30 percent disabling since May 1, 2010 when temporary total ratings were not in effects for periods of convalescence after surgery; and his left foot/toes disability was rated 20 percent disabling since April 27, 2005 and 30 percent disabling beginning June 12, 2019. The record shows he raised a formal claim for TDIU in January 2014; however, the claim for TDIU is considered part and parcel to the increased rating claim for the Veteran's bilateral foot disability that was raised in March 2010. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Regarding his education background and work experience, a November 1996 record showed he completed high school and had two to three quarters of community college. In 1990, he earned a diploma in car mechanics from a technical school and from 1991 to 1992 he took auto body painting classes. The Veteran also took a hotel management course. After service, he worked from 1979 to 1986 in a car body shop. In September 1996, he worked repairing pallets but after a month he had a back injury and continued to work there on light duty. See September 2017 VR&E General. A September 2009 Facility Based Work Adjustment Discontinuance Report showed he was placed at Goodwill Industries in housekeeping, Contracts, and Processing Departments. He was referred for six to eight months of custodial work to assist in determining his feasibility for employment. He was initially placed in the Housekeeping Department but due to complaints of his feet hurting he was moved to the Contracts Department as he could perform the job while seated. The Veteran was in the program from June 2009 to September 2009 at which time his participation was terminated. The report noted the Veteran had many difficulties during his employment, and the areas that needed improvement were identified as attendance/punctuality, scheduling appointments outside of work hours, ability to accept constructive criticism/instructions, and work conduct/behavior. See September 2017 VR&E General. The Veteran applied for vocational rehabilitation in December 2012, and it was stopped in February 2013 because he did not complete his evaluation. See September 2017 VR&E General. On his January 2014 TDIU claim, the Veteran reported that he worked as a mail carrier from 2005 to 2006, a laborer from 2006 to 2008, and a tow truck driver from 2006 to 2008. See January 2014 VA 21-8940. The Veteran testified at the February 2017 hearing that he had difficulty standing due to his feet and could stand no longer than 15 to 20 minutes. He could not walk to the store without stopping and sitting due to his feet swelling. He also had pain all day. He last worked full-time in 2009 doing assembly and he was allowed to sit down and work for a little while in an office zone until he had surgery. He did not think he could ever work again due to the pain and he walked with a cane every day. See February 2017 Hearing Transcript. The medical evidence showed that the Veteran's service-connected foot disabilities, to include scars, were primarily manifested by pain on walking. A VA examination in September 2010 showed the Veteran had an antalgic gait and walked with crutches. He reported having severe right foot pain every two weeks and flare-ups that lasted for several days. The flare-ups were precipitated by weight bearing. See September 2010 VA Examination. Records in January and March 2011 showed he ambulated with first a surgical shoe and then an athletic shoe. The January record showed he rated his pain as 10/10 and in March he rated his pain as only occasionally 10/10 in severity. His fourth and fifth metatarsals were painful to palpation. See June 2011 CAPRI records. A February 2013 treatment record showed there was relatively rigid and painful range of motion of the fifth metatarsophalangeal joint. In February 2014, there was a little bit of mild discomfort on palpation of the dorsal aspect of the resected joint on the right foot. In April 2015 and March 2016, there was some tenderness to the dorsal scar area secondary to scar tissue. See April 2016 CAPRI records. On June 2014 foot VA examination, the Veteran reported right toe pain and denied flare-ups that impacted foot function. He reported a painful hyperkeratotic area on the bottom of the left foot and a painful scar actually on the top of the right foot, where surgery was already performed. The Veteran did not report any function loss or impairment on evaluation and the clinician found there was no functional loss of either foot attributable to the service-connected foot disabilities. See June 2014 C&P Exam. An October 2016 treatment record showed the Veteran reported that it was difficult to walk, and he requested a cane for ambulation. See September 2018 CAPRI records. On March 2017 VA examinations, the Veteran reported that he had difficulty with walking and prolonged standing and that he could not walk one block. He also could not drive because stepping on the pedal is very difficult and painful. The Veteran described his pain as constant and 10/10 in severity. He had flare-ups when he walked; he could stand for 15 minutes, could not walk one block, and could not drive because stepping on the peddle was very painful. His foot scars on the right foot were painful and very tender, and they impacted in his ability to work in that they resulted in limited standing and walking. See September 2018 CAPRI records. In May 2017, the Veteran reported that the right 5th metatarsal head resection had cleared up a lot of pain in the ball of the foot. See September 2018 CAPRI records. A November 2018 treatment record showed that he ambulated without assistance and was in no obvious distress. See November 2018 CAPRI records. On July 2019 VA examinations, the Veteran reported worsening symptoms since his last VA examination. He complained of recurrent painful callouses to the soles of the bilateral feet and has tender and painful scars due to surgeries. He did not have any flare-ups, but he had pain on weight-bearing, instability of station, disturbance of locomotion, and interference with standing. The Veteran regularly used braces and a rollator for his bilateral foot disabilities. See July 2019 C&P Exam. On November 2019 VA examination, the Veteran stated his conditions had remained unchanged. He continued to have recurrent painful callouses to the soles of the bilateral feet. The callouses has to be debrided and the last debridement was Aug 2015. He also had painful and tender scars to the right foot due to multiple surgeries. The examiner noted that the Veteran ambulated with rollator and stated that the scars did not impact the Veteran's ability to work. The foot disability impacted his ability to work due to pain. See November 2019 C&P Exam. In June 2021, the Veteran had bilateral surgery for painful recurring calluses. See July 2021 Medical Treatment Record Non-Government Facility. June and July 2021 treatment records noted complaints of foot pain following his surgery. He was in no acute distress but had problems in ambulation due to his recent surgery. See July 2021 CAPRI records. On September 2021 VA examination, the Veteran reported he was unable to stand, walk or use feet continuously for more than two to three hours. The clinician indicated that more functional loss was expected during flare ups and stated that the Veteran's tandem walk and heel-toe walk were impaired. As the record showed, the Veteran had very little college education and the majority of his work history involved jobs that required him being on his feet, so the Board finds that due to the limitation he had standing and walking due to his service-connected bilateral foot disabilities he would likely be precluded from maintaining employment in those types of jobs. The record also showed that he had a job where he was able to sit, and so his disabilities did not significantly impact his ability to work in that setting. As noted, there was a three month period in 2009 when he was being evaluated for his ability to work. The record did not state what type of job he had, it only noted that it was in the Contracts Department and that it was a job he could do from a seated position. The Veteran had several problems at that job but based on what was documented in the report they were clearly unrelated to his bilateral foot disabilities and there was no indication that his level of education was a hinderance in performing the tasks associated with the job. Since the difficulties were by and large behavioral, the Board finds that the Veteran is capable of doing desk-related work that does not require any specialized education. That being said, the Board finds that the record indicates there is a period in which it is unlikely the Veteran would have been able to maintain employment in a job that required even minimal ambulation. The March 22, 2017 VA examination showed that the Veteran reported having significant pain in his feet that prevented him from walking more than a block without sitting or even drive, and as a result he had to rely on his wife to drive him places. Even if the Veteran was able to sit at a desk for a workday, such restrictions would so severely restrict and limit his ability to even get to and from work that the Board finds it is not feasible that he would have been able to maintain substantial gainful employment. However, due to improvements in symptoms noted in May 2018 and more notably on November 15, 2018 when he had no problem ambulating without assistance and appeared to be in no distress, the Board finds this level of impairment was temporary and that as of the November 2018 record, he more likely no longer had the type of restrictions previously noted that would have precluded substantial gainful employment. The Board also notes that while some VA examiners commented that pain produced by his disabilities would have some impact on his employment, none have indicated that he was not capable of working in a job that allowed him to be seated. Based on the record and resolving reasonable doubt in the Board favor, the Veteran is entitled to a TDIU from March 22, 2017 to November 15, 2018, so to this extent the claim is granted. For the periods prior March 22, 2017 and beginning on November 15, 2018, a preponderance of the evidence is against the claim. Although the Veteran had pain with weight-bearing and walking throughout the appeal, during these periods the evidence indicated that the Veteran's disabilities did not prevent him from driving or ambulating enough to maintain employment in a job that required what would be considered light duty or limited ambulation. Thus, for these periods, the claim for a TDIU is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, Counsel 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.