Citation Nr: 21009536 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-61 194 DATE: February 22, 2021 ORDER Entitlement to a rating of 10 percent, but no higher, for right plantar calluses is granted throughout the appeal period. Entitlement to a rating of 10 percent, but no higher, for left plantar calluses is granted throughout the appeal period. REMANDED Entitlement to a compensable rating for linear scars, status post left orchiectomy, lymph dissection, and right hand injury, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s bilateral plantar calluses have been productive of symptoms that more nearly approximate moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, but no higher, for right plantar calluses have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 5284, 7819. 2. The criteria for a rating of 10 percent, but no higher, for left plantar calluses have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 5284, 7819. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1992 to August 1996. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Increased Rating for Bilateral Plantar Calluses A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and 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. Schafrath v. Derwinski, 1 Vet. App. 589 (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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a noncompensable rating pursuant to Diagnostic Codes 5284-7819. He contends that he is entitled to a compensable rating for his bilateral plantar calluses. Specifically, he testified that his condition impairs his ability to stand and walk as well as requires him to wear special orthotics and cushions inside his shoes. See September 2020 hearing transcript. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and the demonstrated symptomatology. See id. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where a different diagnostic code more appropriately reflects the nature of the veteran’s disability picture, and the change does not reduce the veteran’s level of compensation, the Board has the authority to change the assigned diagnostic code. Butts, 5 Vet. App. at 539. Thus, based on the foregoing, the Board finds that the Veteran’s bilateral plantar calluses are more accurately reflected by a single diagnostic code relating to injuries of the foot, Diagnostic Code 5284, as the evidence demonstrates that the Veteran’s bilateral plantar calluses are not a scar and the documented symptoms of pain and functional loss are more appropriately and favorably rated by Diagnostic Code 5824, which specifically provides subjective and objective rating criteria for the type of injury, contemplates multiple foot diagnoses, symptomatology, and functional impairment resulting from foot injuries rather than the more specific criteria for scars under Diagnostic Code 7804. Accordingly, the Board will address the Veteran’s service-connected bilateral plantar calluses pursuant to Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. An October 2015 VA examiner noted that the Veteran’s condition is active and requires him to manage it regularly. The examiner opined that the Veteran’s bilateral plantar calluses does not impact his ability to work. A February 2017 VA treatment note indicated that the Veteran reported having chronic pain on the balls of his feet since service. The Veteran stated that orthotics help some. A May 2018 VA examiner noted persistent calluses on the bottom of his feet, under the metatarsal heads. She indicated that his calluses affect less than 5 percent of the total body area. She opined that the condition does not impact his ability to work. A January 2019 VA treatment note revealed that the Veteran reported pain on the balls of his feet, which he described as fluctuating from 4-5/10. He indicated that his pain has slightly improved since wearing orthotics. Based on the foregoing, the Board finds that 10 percent ratings, but no higher, is warranted for the Veteran’s painful bilateral plantar calluses pursuant to Diagnostic Code 5284. Throughout the period on appeal, the Veteran has had complaints of pain due to his bilateral plantar calluses, leading to functional impairments in standing and walking. The Board finds that the preponderance of the evidence is against ratings in excess of 10 percent. The evidence does not show nor does the Veteran contend that his condition causes an abnormal gait or limitation of the motion of the feet. Additionally, the evidence indicates that the Veteran does not require an assistive device other than orthotics and did not request or require pain medication throughout the appeal period. Moreover, the Board acknowledges the Veteran’s lay reports of symptoms and that there was functional impairment due to impaired ability with walking and standing for extended periods of time. However, even considering the Veteran’s lay reports of symptoms and functional impairment, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating moderately severe, as required for the next higher rating. In sum, the Board finds that ratings of 10 percent, but no higher, are warranted for the Veteran’s bilateral plantar calluses. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and any further increased rating is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Increased Rating for Linear Scars, Status Post Left Orchiectomy, Lymph Dissection, and Right Hand Injury The Veteran contends that each of his service-connected linear scars should have a separate compensable rating. Specifically, he contends that several of scars are painful and unstable. He also testified that his lymph dissection scar impacts his ability to bend and twist and that his pinky finger on his right hand does not move like it used to. The Board cannot make a fully informed decision on the issue of whether the Veteran’s service-connected conditions warrant separate compensable ratings and finds that clarification is required to determine if there is functional loss associated with the Veteran’s scars as well as whether any of the scars are both painful and unstable. Additionally, clarification is needed to determine whether the Veteran’s service-connected right hand injury has any other residuals besides his scar. Accordingly, remand is required to obtain an updated VA examination. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with a qualified medical professional to determine the current nature and severity of his linear scars, status post left orchiectomy, lymph dissection, and right hand injury. All indicated testing must be conducted and all pertinent symptomology and findings must be reported in detail. The examiner must measure the accurate size of each scar and indicate whether each scar is painful, unstable, deep or superficial, or linear or non-linear. The examiner is also asked to determine whether there is any disabling effect(s) caused by the Veteran’s service-connected scars, to include functional loss. (Continued on the next page)   Moreover, the examiner is asked to address whether the Veteran’s service-connected right hand injury has any other manifestations/residuals other than a scar. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.