Citation Nr: 21076153 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 12-23 260 DATE: December 22, 2021 ISSUES 1. Entitlement to an initial rating in excess of 10 percent from September 6, 2009 for right foot plantar wart functional impairment. 2. Entitlement to an initial compensable rating from September 6, 2009 for right foot plantar wart skin condition. ORDER 1. Prior to January 6, 2020, entitlement to an initial rating in excess of 10 percent for right foot plantar wart functional impairment is denied. 2. Since January 6, 2020, entitlement to a 20 percent rating, but not higher, for right foot plantar wart functional impairment is granted. 3. Entitlement to an initial compensable rating for right foot plantar wart skin condition is denied. FINDINGS OF FACT 1. Prior to January 6, 2020, the Veteran's right foot plantar wart resulted in moderate functional impairment. 2. Since January 6, 2020, the Veteran's right foot plantar wart results in moderately severe functional impairment. 3. The Veteran's right foot plantar wart skin condition affects less than 5 percent of his entire body and is not treated by systemic therapy that is like a corticosteroid or other immunosuppressive medication. CONCLUSIONS OF LAW 1. Prior to January 6, 2020, the criteria for an initial rating in excess of 10 percent for right foot plantar wart functional impairment were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. 2. Since January 6, 2020, the criteria for a 20 percent rating, but not higher, for right foot plantar wart functional impairment are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5284. 3. The criteria for an initial compensable rating for right foot plantar wart skin condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.118, DC 7820. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1982. The case is on appeal from a May 2010 rating decision. In March 2018, the Veteran testified before an undersigned Veterans Law Judge (VLJ) at a Board hearing. He also testified before a second of the undersigned VLJs at a November 2020 Board hearing. At the November 2020 hearing, the Veteran was advised that, because he had testified before two different VLJs, the claims listed on the title page would be addressed in a panel decision decided by both hearing VLJs and a third VLJ. See 38 C.F.R. § 20.604. The Veteran waived the right to attend a hearing before the third VLJ on the panel. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Therefore, the issue is addressed herein by a three-VLJ panel that includes both hearing VLJs. In a February 2021 decision, the Board adjudicated scar, dermatitis, and hearing loss rating claims and an increased rating claim for a right foot plantar wart for additional development. In a May 2021 decision, the Board again remanded the right foot rating claim for additional development. The Board notes that the Veteran submitted a claim for a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC) in September 2021. He indicated that these claims were based on conditions listed in evidence submitted with claim form. The submitted evidence addresses neck, back, knee, and shoulder disabilities, but it does not include any mention of or findings related to a right foot condition. Therefore, the Board finds that the TDIU and SMC claims are not intertwined with the rating claim on appeal. In addition, as the additional evidence received subsequent to the most recent supplemental statement of the case issued in August 2021 is not pertinent to the rating issue on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial rating in excess of 10 percent from September 6, 2009 for right foot plantar wart functional impairment. 2. Entitlement to an initial compensable rating from September 6, 2009 for right foot plantar wart skin condition. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's service-connected right foot plantar wart is rated under 38 C.F.R. § 4.71a, DC 5284, which is a catchall DC for "other foot injuries." Under DC 5284, a 10 percent rating is warranted for a moderate foot disability; a 20 percent rating is warranted for moderately severe foot disability; and a 30 percent rating is warranted for severe foot disability. Actual loss of use of the foot warrants a 40 percent rating. "Moderate" is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. In contrast, "severe" is "of a great degree." www.merriam-webster.com/dictionary/ severe. In addition, the skin condition aspect of the Veteran's right foot plantar wart is rated under DC 7820, which is in turn rated under the General Rating Formula for Skin. See 38 C.F.R. § 4.118, DC 7820. Prior to August 13, 2018, a noncompensable rating is warranted when less than 5 percent of the entire body, or less than 5 percent of exposed area, is affected, and no more than topical therapy is required during the past 12-month period; a 10 percent rating is warranted when there is 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, 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 warranted when there is 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 six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required during the past 12-month period. Id. Note (a) states: For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Id. Moreover, the United States Court of Appeals for Veterans Claims (Court) held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that some applications of topical corticosteroids may constitute systemic therapy under DC 7822 if administered on a large enough scale to affect the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). The Federal Circuit made clear that this determination should be made based on the facts of each individual case. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin. See 38 C.F.R. § 4.118. Under this formula, 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, psoralen with long-wave ultraviolet-A light (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; and 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is seeking higher ratings for his service connected right foot plantar wart. The condition is currently assigned an initial 10 percent rating for functional impairment as a foot condition and a noncompensable rating as a skin condition. The Veteran submitted a letter from a private physician that was written in August 2009. The physician reported that the right foot wart gives the Veteran some discomfort and that he is seen by a podiatrist for the condition. The Veteran was first afforded a foot examination in March 2010. The Veteran reported the condition results in constant right foot pain 5 out of 10 in intensity. He also reported that it does not result in weakness, stiffness, swelling, or fatigue. The examiner found that the condition resulted in right foot tenderness, but denied the presence of painful motion, edema, disturbed circulation, weakness, atrophy, heat, redness, or instability. The examiner concluded that the right foot plantar wart resulted minimal effect on the Veteran's usual occupation and no effect on his daily activity. During VA treatment in August 2010, the Veteran stated the plantar wart is painful when standing. He also stated that the pain varies in intensity from 5 out of 10 to 8 out of 10. He was seen again by a VA physician for this condition in January 2013. He reported using an insole for this condition and requested a new insole. During the March 2018 Board hearing, the Veteran reported that the plantar wart had essentially dissipated and that it does not affect him. Pursuant to a June 2018 Board decision, the Veteran was afforded another examination for this claim January 6, 2020. The Veteran reported that the wart feels like a painful rock under the ball of the right foot. He also reported the pain is worse with weight-bearing and walking. The examiner reported that the right foot plantar wart affects none of the Veteran's exposed body area and less than 5 percent of his total body area. The examiner denied the use of medication to the condition in the past 12 months, including systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave PUVA, or other immunosuppressive drugs. The examiner found that the plantar wart causes pain with walking and results in pain when the Veteran for walks longer than 30 minutes, stands for longer than an hour, or runs for longer than one-third of a mile. The examiner also found that it prevents him from climbing any distance or carrying objects over 20 pounds without pain. The examiner denied the condition affects sedentary activities. During the November 2020 Board hearing, the Veteran reported the right foot wart is painful when walking and results in him shifting weight to his left side. He denied the condition had worsened since the January 2020 examination. Pursuant to the February 2021 Board decision, the Veteran was again afforded a foot examination in March 2021. The Veteran reported has the plantar wart shaved once a month. He also reported that walking is extremely painful and results in him shifting his weight to his left side. The examiner reported that the right foot plantar wart affects none of the Veteran's exposed body area and less than 5 percent of his total body area. The examiner denied the use of medication to the condition in the past 12 months, including systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave PUVA, or other immunosuppressive drugs. Pursuant to the May 2021 Board decision, the Veteran was afforded another foot examination in August 2021. The Veteran reported experiencing pain with walking and using a cane. He also reported experiencing severe pain in the ball of his foot that shoots through his back to his neck, numbness, and paresthesia. He further reported experiencing flareups of severe symptoms two days every two weeks precipitated by weather, strain, or exertion. The examiner reported foot symptoms of pain on weight-bearing, nonweight-bearing, accentuated on use, and accentuated on manipulation. The examiner also reported extreme tenderness of the plantar surface. The examiner denied the presence of swelling on use, characteristic calluses, use of arch support, marked deformity, pronation, alteration of weight-bearing line, inward bowing of Achilles tendon, marked inward displacement and severe spasm of Achilles tendon, and decreased longitudinal arch height. The examiner also denied the presence of plantar fasciitis, Morton's neuroma, metatarsalgia, hallux valgus, hammer toe, hallux rigidus, acquired pes cavus, malunion or nonunion of tarsal or metatarsal bones, foot injuries, and history of surgery. The examiner also found that the Veteran has pes planus diagnosed in 1973 that results in decreased longitudinal arch height. The Board notes that the Veteran's pes planus was noted at his entrance into service and has not been service-connected. The examiner found that the plantar wart results in functional loss of less movement than normal, interference with standing, pain, gait disturbance, and lack of endurance. The examiner explained that the Veteran is unable to stand or walk for more than 5 minutes due to severe foot pain that results in limited physical activity. The examiner concluded that the Veteran's right foot plantar wart results in moderate functional impairment. In consideration of this evidence, the Board finds that an initial rating in excess of 10 percent for right foot plantar wart functional impairment is not warranted prior to January 6, 2020. In this regard, the August 2009 private physician letter indicated the presence of some discomfort. During the March 2010 examination, the Veteran reported right foot pain 5 out of 10 in intensity and the examiner denied the presence of painful motion, edema, disturbed circulation, weakness, atrophy, heat, redness, and instability. The examiner found that the condition resulted in only a minimal effect on the Veteran's occupation. During VA treatment in August 2010, the Veteran reported experiencing pain 5 to 8 out of 10 in intensity. Thereafter, during the March 2018 Board hearing, he reported that the condition had dissipated to the point that it did not affect him. In addition, the Veteran did not report experiencing flareups at any point prior to January 2020. Therefore, the evidence reflects at most moderate symptoms. The only symptom present during this period was pain and the examiner found that the condition had a minimal affect on the Veteran's employment. To the extent that the Veteran reported experiencing pain over 5 out of 10 in intensity in August 2010, he otherwise did not report experiencing more than moderate symptoms during this period and denied experiencing any affects from this condition during the March 2018 Board hearing. The Board also finds that a rating of 20 percent, but no higher, for right foot plantar wart functional impairment is warranted since January 6, 2020. The examination conducted on such date shows that the Veteran's right foot symptoms had worsened. However, the evidence does not indicate that they were severe in the absence of flareups. The January 2020, March 2021, and August 2021 examination reports show that the Veteran's right foot condition resulted in pain on walking, standing, lifting objects, and climbing. The August 2021 examiner also reported symptoms of less movement than normal, interference with standing, pain, gait disturbance, and lack of endurance. However, the examiners found that the condition does not affect the Veteran during sedentary activities. In addition, the August 2021 examiner considered the Veteran's statements, treatment records, and examination findings and concluded that the severity of the Veteran's right foot symptoms are moderate rather than moderately severe or severe. During the August 2021 examination the Veteran reported experiencing flareups of severe symptoms that two days every two weeks. Thus, the right foot plantar wart results in moderately severe functional impairment when factoring in the Veteran's reports of severe symptoms during the 15 percent of the time that he experiences flareups. However, as the Veteran's condition is severe only 15 percent of the time, assigning an overall rating of severe would result compensation beyond the average impairment in earning capacity caused by this condition. See 38 C.F.R. § 4.1. Therefore, a rating in excess of 20 percent since January 6, 2020 is not warranted. The Board further finds that a separate compensable rating for the right foot plantar wart skin condition is not warranted at any time during the period on appeal. The January 2020 and March 2021 examiners explained that the condition does not affect any of the Veteran's exposed body area and less than 5 percent of his total body area. In addition, the examiners explained that the condition is not treated by systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave PUVA, or other immunosuppressive drugs. See Johnson, 862 F.3d at 1354-56. While the Veteran experiences functional impairment due to the plantar wart, this impairment is compensated by the ratings assigned under DC 5284 as discussed above. See 38 C.F.R. §§ 4.14, 4.71a, DC 5284. Accordingly, the preponderance of the evidence shows that prior to January 6, 2020 the Veteran's right foot plantar wart resulted in moderate functional impairment and since such date results in moderately severe functional impairment. In addition, the preponderance of the evidence shows that the right foot plantar wart skin condition affects less than 5 percent of his entire body and is not treated by systemic therapy that is like a corticosteroid or other immunosuppressive medication. Therefore, while a 20 percent rating for right foot functional impairment is warranted since January 6, 2020, the benefit-of-the-doubt doctrine is not applicable and additional higher or separate compensable ratings are not warranted at any time during the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. (signature page following) Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.