Citation Nr: 21070029 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 13-23 337 DATE: November 22, 2021 ORDER A disability rating in excess of 10 percent for callouses affecting both feet is denied. FINDINGS OF FACT 1. The callouses affecting both feet were painful, but not unstable, did not interfere with ambulation or other function, and did not require systemic medication such as immunosuppressive retinoids from January 2, 2009, to September 2, 2010. 2. From September 2, 2010, to the present, the Veteran's callouses affecting both feet were painful, but not unstable, did not interfere with ambulation or other function, other than by contributing to his overall foot pain, and did not require systemic medication such as immunosuppressive retinoids. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for callouses of both feet between January 2, 2009, and September 2, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7804, 7819, 7824. 2. The criteria for a disability rating greater than 10 percent for callouses of both feet from September 2, 2010, to the present, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7804, 7819, 7824. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1970. He was awarded the Vietnam Campaign Medal in connection with his service in Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 Regional Office/Agency of Original Jurisdiction (AOJ) decision. The Veteran provided sworn testimony in support of his appeal during a May 2016 videoconference hearing before the undersigned Veterans Law Judge. The transcript of this hearing was included in his claims file and has been considered in each of the Board decisions and remands since then. The Board remanded the case in September 2016, February 2019, November 2020, and in February 2021. The actions requested on remand have been satisfactorily accomplished. The AOJ made exhaustive efforts to obtain VA Choice records to support the Veteran's appeal and performed an administrative review as to whether the Veteran's claim for an increased disability rating for his service-connected callouses should be referred to VA's Director of Compensation Service for extra-schedular consideration. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Historically, service connection for callouses of both feet was granted in April 1972, based upon service records showing that the callouses had their inception during service. A noncompensable, or zero percent, disability rating was assigned at that time. The disability rating was increased to 10 percent in March 2004. The Veteran is seeking a higher disability rating, on the basis that his callouses are painful, and interfere with normal ambulation. Throughout the appeal period, the Veteran's callouses affecting both feet have been rated using a built-up, hyphenated Diagnostic Code of 7819-7824. Because the period of time at issue here is from January 2009 to September 2010, the regulatory rating criteria which were in effect at that time are set forth below and will be applied in the Board's analysis. Although some of the regulatory criteria for rating skin diseases have been updated during this lengthy appeal period, none of these updates affect the Diagnostic Codes at issue here. 38 C.F.R. § 4.118. Diagnostic Code 7819 provides that benign skin neoplasms not affecting the head, face, or neck, are to be rated as scars, or based upon impairment of function. 38 C.F.R. § 4.118. Diagnostic Code 7804 pertains to scars that are unstable or painful. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. In the case of five or more scars that are unstable or painful, a 30 percent rating is assigned. When three or four scars are unstable or painful, a 20 percent rating is assigned. When one or two scars are unstable or painful, a 10 percent rating is assigned. 38 C.F.R. § 4.118. Diagnostic Code 7824 provides that diseases of keratinization including ichthyoses, Darier's disease, and palmoplantar keratoderma are to be evaluated based upon generalized cutaneous involvement or systemic manifestations. Compensable ratings are provided when systemic medication such as immunosuppressive retinoids, was required. 38 C.F.R. § 4.118. 2009-2010 Between January 2, 2009, when the Veteran's claim for an increased rating was received from his United States Senator's office, and September 2010, when service connection for bilateral hammertoes was implemented, the evidence shows the Veteran consistently complained of painful callouses. VA podiatry records show that the callouses were regularly debrided, and that he used a pumice stone at home to reduce the callouses. The Veteran was provided with a VA examination in September 2010. The report of the examination reflects the Veteran's report of constant pain in his feet, which was exacerbated by physical activity, walking, and standing. He was having the callouses trimmed regularly. The examiner observed that the Veteran's posture and gait were normal. Both feet were tender on examination. The examiner noted that although the Veteran had orthopedic shoes, arch supports, foot supports, and shoe inserts, his symptoms and pain were not relieved by these orthopedic aids. The examiner characterized the Veteran's bilateral foot callouses as "active," requiring repetitive shaving. Applying these regulations to the facts of the Veteran's case from 2008 to 2010, it would appear that the primary symptom of the Veteran's callouses was that of tenderness and pain. The need for frequent shaving was an additional burden. It does not appear that his gait was affected at that time, as the VA examiner in 2010 deemed his gait was normal. Absent interference with ambulation, the Board deems that rating based upon impairment of function under Diagnostic Code 7819 would be inappropriate during this time period. Similarly, as the Veteran was not taking systemic medication such as immunosuppressive retinoids for his callouses, a compensable disability rating under Diagnostic Code 7824 is not warranted. Therefore, the Board concludes that rating the Veteran's callouses by analogy to scars is the most appropriate method and supports the most beneficial disability rating. It appears that this is the analysis used by the AOJ as well. Under the definition set forth in Diagnostic Code 7804, the Veteran's callouses were not unstable, as the callouses did not cause loss of skin. The callouses were painful, however. The objectively painful nature of the callouses was clearly recorded in his contemporaneous medical records and in his own statements, as well. Viewed by analogy, painful callouses affecting two feet equates to two scars, which warrants a 10 percent disability rating under the provisions of Diagnostic Code 7804. 38 C.F.R. § 4.118. The Board therefore affirms the AOJ's analysis and holds that the currently assigned 10 percent disability rating more closely represents the level of impairment shown during the time period at issue, when the schedular rating criteria in effect at the time are applied. The preponderance of the evidence is against the claim. A disability rating greater than 10 percent for bilateral callouses between January 2, 2009, and September 2, 2010, is denied. 2010-present When the Veteran initially filed for an increased rating, callouses were his only service-connected foot disability. However, over the years while this appeal has been on-going, service connection was granted for bilateral metatarsalgia with Morton's neuroma, bilateral hammertoes, and bilateral knee strain; all as secondary to the service-connected callouses. Service connection has also been granted for bilateral tinea pedis with onychomycosis, rated as 0 percent disabling. It is only the rating for callouses which is on appeal here, however. It is important to note the other service-connected disabilities in both legs, because under the formula for combining ratings set forth in 38 C.F.R. § 4.25, the service-connected disabilities affecting each of the Veteran's legs from the knee down, combine to 51 percent disabling. The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The combined evaluations for disabilities at or below the knee shall not exceed a 60 percent disability rating, as provided by 38 C.F.R. § 4.71a, Diagnostic Codes 5162, 5163, 5164 (amputation at the middle or lower thirds of the thigh; amputation of the leg with defective stump, thigh amputation recommended; and amputation not improvable by prosthesis controlled by natural knee action all warrant a 60 percent evaluation). The "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Thus, any increase in the disability rating for the Veteran's calluses cannot raise the combined disability rating above 60 percent, as a rating higher than 60 percent for each leg is prohibited by law. Medical records from 2010 to the present reflect that the Veteran's callouses continued to cause pain. In May 2011, the Veteran's callouses were noted to be painful, but no infection was observed. An October 2012 podiatry note reflects painful hyperkeratotic lesions on the ball of his right foot. His callouses were debrided in October 2012 and again in November 2012. In December 2012, he reported that his right foot callus was causing excruciating pain when walking. Upon examination, a right foot porokeratosis was identified along with extensor tendonitis. Other 2012 podiatry reports characterize the right foot growth as a verruca. A March 2015 note reflects the Veteran's history that his left foot surgery relieved the painful callouses on the left foot, and he desired to have a similar surgery to relieve the painful callouses on his right foot. The Veteran's callouses were debrided in August 2015. An October 2015 physical therapy note, just prior to the Veteran's metatarsal surgery, reflects that the Veteran ambulated without significant gait abnormalities at that time. Similarly, normal gait was noted in June 2014, December 2014, June 2015, September 2015, October 2015, February 2016, July 2016, and December 2016 nursing assessments. However, a February 2016 treatment record shows pain in the right foot. A July 2018 VA medical reviewer evaluated the Veteran's medical records and concluded that the Veteran's callouses did not cause altered gait. The Veteran's gait was noted to be normal during nursing assessments in June 2017, December 2017, May 2018, December 2018, and September 2019. According to a nursing assessment in June 2019, however, the Veteran's gait was assessed as "weak." The Veteran underwent a VA foot examination in October 2019. The Veteran reported monthly care of his feet by podiatry. He stated that arch supports and orthotics have not been helpful, and that he wears wide, comfortable shoes at all times. He stated that his foot pain limits his walking. In addition to the bilateral calluses, the examiner rendered diagnoses of Morton's neuroma, hammertoes, and metatarsalgia affecting both feet. The examiner noted chronic pain in the post-surgical areas of the feet, around the fifth proximal interphalangeal joints of both feet. Specifically with regard to the calluses, the examiner characterized them as moderate in nature and noted that the calluses chronically compromise the Veteran's weight bearing. There was objective pain in both feet during the clinical examination, which impaired function on movement, walking, when weight bearing and not weight bearing. On longitudinal review of the Veteran's records, the examiner deemed that the Veteran's symptoms had worsened. Nursing assessments in December 2019, April 2020, October 2020, and April 2021 reflect normal gait. VA treatment records show the Veteran participated in pain management for his knee pain; there is no mention of foot pain specifically in these records. Applying the rating criteria to these facts, the Board initially notes that the Veteran still does not require systemic medication such as immunosuppressive retinoids for his callouses. Therefore, a compensable disability rating under Diagnostic Code 7824 is not warranted. The analysis above pertaining to Diagnostic Code 7804 continues to be applicable, as the Veteran's callouses were noted to be painful during the second time period at issue as well. The 10 percent rating, for bilateral callouses as analogous to two scars is therefore continued from 2010 to the present. 38 C.F.R. § 4.118, Diagnostic Code 7804. The real question is whether the calluses impacted the Veteran's ambulation and functioning under the provisions of Diagnostic Code 7819 so as to warrant a compensable disability rating from 2010 onward. Upon careful review, the Board determines that the callouses alone do not affect ambulation to the extent that a separate rating under Diagnostic Code 7819 is warranted. Primary to this conclusion is the multiple notations throughout the appeal period of a normal gait. Our analysis is admittedly complicated as the Veteran has multiple service-connected disabilities involving his feet, and all cause pain. He additionally has some diabetic neuropathy in the feet. The October 2019 examiner noted that pain in the feet affected his ability to ambulate. The examiner did not, however, specify that the callouses themselves affected ambulation; rather the painful feet affected ambulation. Because the painful callouses are already being rated under the provisions of Diagnostic Code 7804, there is no basis to add a separate disability rating under Diagnostic Code 7819. In sum, the preponderance of the evidence is against a disability rating greater than 10 percent for callouses of both feet. The appeal is denied. Extra-schedular consideration The Board observes that a September 2020 Post-Remand Brief referenced the criteria for extraschedular consideration but did not provide any specific argument as to why the extraschedular criteria should apply. The Veteran's feet have been separately evaluated for calluses of the feet under Diagnostic Code 7819-7824, bilateral metatarsalgia under Diagnostic Code 5279, left and right foot hammertoes under Diagnostic Code 5282 and bilateral tinea pedis with onychomycosis under Diagnostic Code 7813-7806. The Board developed these aspects of disability during the appeal period. As noted above, since September 2, 2010, when service connection for bilateral hammertoes was implemented, the combined disability has been 51 percent for each lower extremity and the overall rating cannot exceed the amputation rule. For the entire appeal period, the Board finds that the symptoms reported by the Veteran were adequately contemplated by the schedular criteria. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.