Citation Nr: 21009767 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-20 588A DATE: February 23, 2021 ORDER 1. Entitlement to an initial 30 percent rating, but no higher, from the date of service connection for service-connected post-traumatic arthropathy of the right ankle is granted. 2. Entitlement to a compensable initial rating for service-connected hyperkeratosis of the bilateral feet is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From the date of service connection, the Veteran’s service-connected post-traumatic arthropathy of the right ankle has most nearly approximated ankylosis in dorsiflexion between 0 and 10 degrees. 2. The Veteran's service-connected hyperkeratosis of the bilateral has been manifested by painful lesions without systemic medication. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a rating of 30 percent, but no higher, for service-connected post-traumatic right ankle arthropathy have been met from the date of service connection. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 2. The criteria for an initial compensable rating for hyperkeratosis of the bilateral feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7824. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions dated June 2011 and April 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the June 2011 rating decision, the RO granted service connection for post-traumatic arthropathy of the right ankle and assigned a 20 percent rating; the June 2011 rating decision also awarded service connection for severe hyperkeratosis of the right foot; a noncompensable (zero percent) was assigned. The Veteran disagreed with the assigned rating and perfected a timely appeal in June 2014. A subsequent September 2015 rating decision awarded service connection for severe hyperkeratosis of the left foot and established a noncompensable rating for severe hyperkeratosis of the right and left feet. In August 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In Board decisions dated March 2019 and June 2020, the claims on appeal were remanded for further evidentiary development. As will be detailed below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in January 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. In a January 2021 rating decision, the RO increased the assigned rating for the service-connected right ankle disability to 30 percent from August 3, 2018. The Veteran has not expressed satisfaction with the increased initial rating; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Veteran has appeals pending before the Board with respect to the issues of entitlement to an initial rating in excess of 10 percent for service-connected left ankle sprain, entitlement to an initial rating in excess of 20 percent for pes cavus of the right foot with hammertoes, entitlement to an effective date prior to October 15, 2015 for the award of a 20 percent rating for service-connected pes cavus of the right foot with hammertoes, entitlement to service connection for pes cavus of the left foot, and entitlement to a TDIU. As the outstanding matters remain pending the scheduling of Board hearings, which the Veteran has requested in connection with his appeals, said issues will be the subject of a future Board decision and will be discussed no further herein. The Board notes that the matter of entitlement to a TDIU has been separately raised as part and parcel of the Veteran’s claim of entitlement to higher initial ratings for the service-connected post-traumatic arthropathy of the right ankle and hyperkeratosis of the bilateral feet pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The Board has therefore enumerated the issue above. 1. Entitlement to an initial rating to a higher initial rating for service-connected post-traumatic arthropathy of the right ankle in excess of 20 percent prior to August 3, 2018 and 30 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” 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 intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. In the instant case, the Veteran’s service-connected arthropathy of the right ankle is rated at 20 percent under DC 5271 prior to August 3, 2018 and at 30 percent under DC 5270. Under DC 5271 (limitation of motion of the ankle), a 10 percent evaluation is assigned for moderate limitation of the ankle, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 8 C.F.R. § 4.71a, Plate II. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). While the Rating Schedule does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Diagnostic Code 5270 assigns a 20 percent evaluation for ankylosis of the ankle in plantar flexion, less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. A 30 percent evaluation is assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent evaluation is assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with an abduction, adduction, inversion or eversion deformity. Diagnostic Code 5272 assigns a 10 percent evaluation for ankylosis of the subastragalar or tarsal joint in good weight-bearing position, and assigns a 20 percent evaluation for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. 38 C.F.R. § 4.71a, DC 5272. Diagnostic Code 5273 assigns a 10 percent evaluation for malunion of the os calcis or astraglus with moderate deformity, and assigns a 20 percent evaluation with marked deformity. 38 C.F.R. § 4.71a, DC 5273. Diagnostic Code 5274 assigns a 20 percent evaluation for astragalectomy. 38 C.F.R. § 4.71a, DC 5274. Loss of use of a foot is rated at 40 percent under Diagnostic Code 5167, which includes a note that the loss of use of a foot is also entitled to special monthly compensation (SMC). Similarly, amputation of the forefoot, proximal to the metatarsal bones (more than one-half of metatarsal loss) is rated at 40 percent under DC 5166, which also includes eligibility for entitlement to SMC. 38 C.F.R. § 3.350(a)(2); 4.63; 4.71a, DCs 5166, 5167. Thus, in addition to benefits under the schedular criteria set out in 38 C.F.R. § 4.71a, loss of use of the foot also warrants entitlement to compensation under the SMC regulations set forth in 38 C.F.R. § 3.350. In this matter, the Veteran was service-connected for post-traumatic arthropathy of the right ankle in a June 2011 rating decision, which granted a 20 percent rating from March 17, 2010. The Veteran filed a timely notice of disagreement (NOD) as to the assigned initial rating, and this appeal follows. As indicated above, in a January 2021 rating decision, the RO increased the assigned initial rating for service-connected right ankle disability to 30 percent from August 3, 2018. The Veteran asserts that he is entitled to initial ratings in excess of 20 percent prior to August 3, 2018 and 30 percent thereafter for his service-connected right ankle disability. For the reasons set for below, the Board finds that a rating of 30 percent, but no higher, is warranted from the date of service connection. A January 2010 VA podiatry consultation documented the Veteran’s chronic right ankle discomfort. The treatment provider noted, “[t]here is limitation of ankle joint range of motion to the point where he could barely get to neutral position on the right ankle.” The treatment provided diagnosed the Veteran with post-traumatic arthropathy of the right ankle with ankle joint stiffness. The Veteran was afforded a VA examination in May 2011 at which time he reported right ankle weakness, stiffness, and swelling. He indicated that his symptoms worsen in the winter. The Veteran reported the following right ankle symptoms at rest: dull, aching, and constant pain. Standing and walking cause dull constant pain in the right ankle. The Veteran reported the use of a right ankle brace. He takes hydrocodone, tramadol, and piroxicam for discomfort. The examiner noted that the Veteran “was employed at some point but now he is unemployed because he simply cannot do the walking required to maintain a job working as a car salesman. He is in school now trying to do professional rehabilitation to change his type of occupation, so he is unemployed.” The Veteran reported that he is only able to walk for one block and is only able to stand for about 10 minutes. Range of motion testing showed dorsiflexion of the right ankle at -5 degrees and plantar flexion at 4 degrees. The examiner noted, “[a]ctively, he is only able to get to -7 degrees of dorsiflexion with increased weakness and 40 degrees of plantar flexion.” The Veteran exhibited decreased right ankle strength. The examiner confirmed a diagnosis of posttraumatic arthropathy with chronic ankle joint capsulitis and ankle joint stiffness. VA treatment records dated in June 2012 noted that the Veteran has limitation of range of motion of the right ankle with pain and stiffness, especially in the dorsiflexory direction. VA treatment records dated in June 2014 documented the Veteran’s significant right ankle pain with joint stiffness. The Veteran was afforded a VA examination in September 2015 at which time the examiner confirmed a continuing diagnosis of post-traumatic arthropathy of the right ankle. The Veteran endorsed flare-ups of right ankle symptoms manifested by symptoms, stiffness, acute pain, and lack of mobility. Functional loss of the right ankle results in weak ankles, limited range of motion, and severe pain. The examiner noted that pain is noted one examination and causes functional loss. There is localized tenderness over the anterior aspect of the right ankle. There is evidence of pain with weight-bearing. Range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 45 degrees. The Veteran’s limited range of motion impairs activities like running, as well as climbing up and down stairs. There was no additional limitation of motion with repetitive motion testing. Weakness and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner additionally reported that pain, fatigue, weakness, and lack of endurance significantly limit functional ability with flare-ups. However, the examiner indicated that he cannot describe this limited functional ability over time or with flare-ups in terms of degree because this will depend on the amount of physical activities done and severity of the flare-ups, so will be mere speculation to estimate in terms of degrees. The examiner noted less movement of the right ankle than normal with swelling, disturbance of locomotion, and weakened movement. Muscle strength was intact with no evidence of atrophy. The examiner indicated that there was no ankylosis of the right ankle. The Veteran reported regular use of a cane. The examiner noted that the Veteran’s right ankle disability does impact his ability to work. Specifically, the examiner stated, “[t]he ankle conditions alone impair activities like walking longer than two miles, running loner than half [a] city block, driving longer than two hours, and climbing up more than two flights of stairs.” VA treatment records dated in September 2015 documented right ankle joint stiffness. A December 2015 VA treatment provider indicated that the Veteran has severe ankle joint decreased range of motion noted with painful attempt at range of motion, especially in dorsiflexion of the fight ankle. A February 2016 VA examination of the feet noted that the Veteran exhibited swelling in the right ankle “with absent flexibility.” Pursuant to the June 2020 Board Remand, the Veteran was afforded a VA examination of the right ankle in December 2020. The examiner noted a continuing diagnosis of posttraumatic arthropathy of the right ankle. The Veteran reported right ankle pain. He stated that his ability to walk is limited to 50 feet and ability to stand is limited to 15 minutes. The Veteran indicated that he is unable to climb ladders and stairs. He reported that his flare-ups occur daily, and are moderate to severe. His right ankle flare-ups last one hour with therapy. These flare-ups are precipitated by increased walking or standing, and are alleviated by elevation, rest, and heat. Range of motion testing revealed dorsiflexion to 7 degrees and plantar flexion to 10 degrees. The examiner noted that the Veteran “hardly moves this ankle before reporting extreme pain if he moves it further in any direction. Pain was noted throughout plantar and dorsiflexion. There is localized tenderness in the medial and lateral aspects of the right ankle. There is pain with weight-bearing. There is no evidence of crepitus. The Veteran declined to perform repetitive use testing “since he reports this would cause a flare.” The examiner stated that pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repeated use over a period of time and during flare-ups. The examiner stated that repeated use over a period of time and flare-ups would result in dorsiflexion to 5 degrees and plantar flexion to 7 degrees. The examiner reported that additional factors contributing to his right ankle disability include less movement than normal, swelling, and disturbance of locomotion, as well as interference with sitting and standing. Muscle strength was reduced at 3/5 (active movement against gravity). There was no evidence of muscle atrophy. The examiner reported that the Veteran had ankylosis of the right ankle in plantar flexion at 7 degrees, and in dorsiflexion at 5 degrees. The examiner noted, “[m]ost any effort to move either ankle is minimal and he guards against passive Rom testing at this point in the exam.” Joint stability could not be evaluated for this reason. The Veteran reported the constant use of a right ankle brace and a cane for ambulation. The examiner stated that there is not functional impairment of the right lower extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The examiner reported that the Veteran’s right ankle disability does impact his ability to perform occupational tasks. Specifically, the examiner explained, “[m]ost any effort to move either ankle is minimal but the left has more strength limited walking to 50 feet and standing over 15 minutes, no climbing ladders or stairs.” In sum, the Board concludes that the clinical findings, documented by the VA treatment records and examination reports dated from the date of service connection, show significantly impaired range of motion of the right ankle due to pain and stiffness with corresponding functional impairment. Affording him the benefit of the doubt, the Board therefore finds that the Veteran’s service-connected right ankle disability more nearly approximate the criteria for ankylosis in dorsiflexion between 0 and 10 degrees under DC 5270 from the date of service connection. 38 C.F.R. § 4.71a, DC 5271. Accordingly, the Board finds that a 30 percent rating is warranted for the service-connected right ankle disability from the date of service connection. The Board has considered whether a rating in excess of 30 percent is warranted for the right ankle disability under DC 5270. To this end, the Veteran is separately service-connected for pes cavus of the right foot with hammer toes at toes 2, 3, 4, and 5; a noncompensable rating is assigned from November 4, 2014 and a 20 percent rating is assigned from October 15, 2015. The “amputation rule” set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. In this case, the right lower extremity is now assigned a 30 percent rating from October 15, 2015. As the Veteran’s right lower extremity disability involves the leg below the knee, the combined rating for that disability may not exceed 40 percent. See 38 C.F.R. §§ 4.68, 4.71a, DC 5270. The Board has considered whether a rating in excess of 30 percent is warranted for the right ankle prior to October 15, 2015. However, range of motion testing shows that the Veteran’s right ankle was not fixed in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, at any time during the appeal period to include prior to October 15, 2015. As such, a rating in excess of 30 percent is not warranted. Moreover, the Board has considered the application of other pertinent diagnostic codes. However, the Veteran did not manifest malunion of the os calcis or astragalus, nor consolidation of either ankle and/or subastragalar or tarsal joint. There is also no basis for evaluating the service-connected right ankle disability as analogous to DC 5283 or DC 5273. The Veteran had not undergone an astragalectomy and, hence, the criteria of DC 5274 are not applicable. For the foregoing reasons, the Board finds that the Veteran’s service-connected post-traumatic arthropathy of the right ankle warrants a rating of 30 percent, but no higher, from the date of service connection. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to a compensable initial rating for service-connected hyperkeratosis of the bilateral feet. As set forth above, the Veteran was service connected for severe hyperkeratosis of the right foot in a June 2011 rating decision; a noncompensable (zero percent) was assigned from March 17, 2010. The Veteran disagreed with the assigned rating and this appeal follows. A subsequent September 2015 rating decision awarded service connection for severe hyperkeratosis of the left foot and established a noncompensable rating for severe hyperkeratosis of the bilateral feet. The Veteran asserts that he is entitled to a compensable initial rating for his service-connected hyperkeratosis of the bilateral feet. For the reasons set for below, the Board finds that a compensable rating is not warranted. The Veteran's service-connected hyperkeratosis, claimed as a scalp condition, is rated under Diagnostic 7824 for diseases of keratinization. Under DC 7824, a noncompensable rating is assigned if the disease requires no more than topical therapy during the past twelve-month period. A 10 percent evaluation is warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past twelve-month period. A rating of 30 percent is warranted when the skin disorder is manifested by either generalized cutaneous involvement or systemic manifestations, with intermittent systemic medication such as immunosuppressive retinoids required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. A rating of 60 percent is warranted when there is either generalized cutaneous involvement or systemic manifestations, with constant or near-constant systemic medications such as immunosuppressive retinoids required during the past twelve-month period. 38 C.F.R. § 4.118, DC 7824. For the reasons set forth below, the evidence does not more nearly approximate the criteria for an initial compensable rating of 10 percent or higher. A January 2010 VA podiatry consultation documented the Veteran’s severe lesions on the bottom of his foot. He is prescribed orthopedic shoes. The Veteran reported a previous excision of the hyperkeratotic lesions, which produced even more painful scar tissue. Physical examination showed chronic severe lesions on the right sub first and fifth metatarsal head areas with a scarified base, as well as significant pain on palpation to the area. The treatment provider further noted that the Veteran has an anterior cavus deformity with pain on plantar flexion inversion to the right ankle and lateral rear foot area. The examiner also noted hypertrophy of the extensor digitorum brevis belly as well as the lateral ankle in general. The treatment provider indicated that, to a much lesser degree, the Veteran has mild hyperkeratosis of the sub first and fifth metatarsal head on the left foot. The treatment provider reported a diagnosis of chronic severe associated metatarsalgia with painful associated hyperkeratosis with underlying painful scar right foot and mild chronic hyperkeratosis to the left foot. VA treatment records dated in March 2010 and June 2010 document chronic severe lesions to the bilateral sub first and fifth metatarsal heads worse on the right. The Veteran also exhibited an anterior cavus foot deformity. The Veteran was afforded a VA examination in May 2011 at which time he reported pain at 7/10 severity in the bilateral feet. He indicated that the pain can increase to 10/10 in severity, depending on how much time he spends on his feet and whether they need to be debrided. The Veteran reported the use of Emla cream to manage his foot symptoms. The examiner noted that the Veteran “has received treatment such as x-rays of the right foot and ankle, orthopedic shoes, and customized insoles, periodic debridement, use of Emla cream, discussed possibility of potential surgery, other intervention such as soaking, multiple spenco insoles and refills on pain medication.” The Veteran reported that he can only stand for about 10 minutes, especially if barefoot. He indicated that he can only walk one block. Physical examination revealed severe, thick, deep hyperkeratotic callus type lesions on the plantar aspect of the right sub first and fifth metatarsal heads. The examiner noted that the lesions have “deep underlying gray scar tissue down through the intradermal layer. He has fat pad atrophy and these are exquisitely tender to touch.” Physical examination of the left foot revealed minor lesions under the sub first and fifth metatarsal head areas. The examiner noted bilateral hammertoes. The examiner diagnosed the Veteran with chronic severe recalcitrant metatarsalgia. VA treatment records dated in June 2012 and June 2014 documented chronic painful hyperkeratotic lesions of the right and left feet. The June 2014 VA treatment provider noted, “[w]e will consider immunosuppressive retinoids as a possibility to help with the residual disorder of keratinization and chronic hyperkeratosis.” In December 2014, the Veteran told his treatment provider that “he wants to have the immunosuppressive retinoid treatment.” However, in September 2015, the Veteran’s treatment provider indicated that this treatment would not be pursued because “the painful calluses are as a result of his foot structure as well as his ankle stiffness. Th[is] together cause[s] irritation/friction which develops into calluses.” The Veteran was afforded a VA examination in September 2015 at which time the examiner confirmed diagnoses of hammer toes and acquired pes cavus. The Veteran reported that his right foot pain is severe, constant, and getting worse as he ages. The Veteran reported flare-ups manifested by a limited ability to move with the right foot. He experienced functional loss of the right foot, particularly loss of range of motion and stiffness associated with severe pain. The examiner noted the Veteran’s very painful callosities of the bilateral feet. There was evidence of pain on weight-bearing and nonweight-bearing. The examiner noted that pain significantly limits functional ability during flare-ups or when the feet are used repeatedly over a period of time. The examiner noted the Veteran’s report of “[p]ain during standing, walking, running and driving for any period of time.” He endorsed the regular use of a cane. Notably, the examiner reported that the Veteran’s function is so diminished that amputation with prosthesis would equally serve the Veteran. The examiner explained, “[s]evere pain and tenderness mainly of the right foot severely impairs standing, walking and driving.” However, the examiner then reported that the Veteran’s bilateral foot disabilities have no impact on his ability to work. A September 2015 VA dermatological examination documents hyperkeratosis of the bilateral feet, which is severe in the right foot. The examiner indicated that the Veteran’s hyperkeratosis is not treated with oral or topical medications in the last twelve months. The examiner additionally reported that the Veteran’s hyperkeratosis of the bilateral feet does impact his ability to work. The examiner explained, “[s]evere pain and tenderness mainly of the right foot, severely impairs standing, walking and driving.” The examiner noted that the Veteran’s hyperkeratosis affects less than 5 percent of his total body area and of the affected area. VA treatment records dated in September 2015 documented painful hyperkeratotic lesions in a tripod orientation. VA treatment records dated in December 2015 noted hypersensitivity to the right foot at the painful lesions. The treatment provider documented severe, nucleated hyperkeratotic painful lesions of the right foot at the sub first and fifth metatarsal heads, as well as digital contracture to the second through fifth digits with claw toe deformity. The Veteran was afforded a VA examination in February 2016 at which time the examiner noted the Veteran reported flare-ups of bilateral foot symptoms with standing, walking, running, and increased pain. The examiner additionally reported functional impairment of the bilateral feet manifested by loss of mobility in the ankle, and loss of flexibility to the bilateral feet. The examiner noted that the Veteran exhibited definite tenderness of the lower metatarsal heads with very painful callosities. The examiner noted that the Veteran’s pain with ambulation increases inflammation altering his gait. Flare-ups caused difficulty ambulation. The Veteran reported constant use of a cane, as well as orthotic shoes. The examiner indicated that the Veteran’s bilateral foot disability does impact his ability to work. The examiner explained, “[t]he functional impact of each condition is pain with ambulation. Difficulty walking for prolonged periods of time. Pain occurs.” VA treatment records dated in August 2017 documented the Veteran’s continuing complaints of painful calluses of the right and left feet. The examiner noted the Veteran’s “extensive history of podiatric issues including ankle stiffness, painful calluses, contracted toes as well as discolored, thick fungal toenails.” The Veteran exhibited moderate nucleated hyperkeratotic painful lesions on the right and left sub first and fifth metatarsal heads, as well as localized hyperkeratotic lesions in the plantar medial right and left halluces. The examiner noted semirigid digital contracture to digits two through five with clawtoe deformity. Pursuant to the June 2020 Board Remand, the Veteran was afforded a VA examination in December 2020 at which time the examiner confirmed diagnoses of hyperkeratosis and calluses of the right and left feet. He endorsed symptoms of foot pain, which is treated with foot cream. He described constant pain and walking limited to 100 feet. The Veteran is unable to run or carry more than 20 pounds. He reported fatigability and lack of endurance due to his bilateral foot disabilities. The examiner noted that the Veteran experiences pulsating, aching, sharp nerve-ending type sensations in the hyperkeratosis calluses. The Veteran reported that his hyperkeratosis is treated with topical treatments; specifically, an unknown brand. The examiner noted that the Veteran’s hyperkeratosis affects less than five percent of his total body area, and less than five percent of the exposed area. The examiner reported that the Veteran’s hyperkeratosis of the bilateral feet does impact his ability to work. The examiner noted the Veteran’s report “that he cannot be certain which limitations are skin versus ankle related – he indicates that his feet are tender and make walking difficult and, in turn, adds stress to his ankles based on the way he walks and he feels ankles worse.” Critically, the evidence does not show that the hyperkeratosis required systemic medication from the date of service connection. As detailed above, the Veteran’s VA treatment providers explicitly considered the use of immunosuppressive retinoids; however, this treatment was never undertaken. There is no evidence that the Veteran’s hyperkeratosis of the bilateral feet has been treated with systemic medication at any time from the date of service connection. Accordingly, a compensable rating is not warranted for hyperkeratosis of the bilateral feet pursuant to DC 7824. As hyperkeratosis is specifically contemplated by the Rating Schedule under DC 7824 for diseases of keratinization, no other diagnostic code would be appropriate in the evaluation of the Veteran’s disability. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). Accordingly, for the reasons explained above the preponderance of the evidence is against an initial compensable rating for the service-connected hyperkeratosis of the bilateral feet. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether the evidence of record shows that the Veteran’s hyperkeratosis and/or right ankle symptomatology is so severe as to be analogous to loss of use of a foot or forefoot under Diagnostic Codes 5167 and 5166. To this end, the Board notes that the September 2015 VA examiner indicated that the Veteran’s right lower extremity function is so diminished that amputation with prosthesis would equally serve him. However, this finding by the September 2015 VA examiner is not supported by the medical evidence and is in contrast to findings rendered by the May 2011, February 2016, and December 2020 VA examiners. Moreover, the Veteran’s treatment providers have not indicated that the Veteran’s hyperkeratosis and/or right ankle symptomatology is so severe as to be analogous to the loss of use of the foot or forefoot. Accordingly, the Board finds that the medical evidence of record does not support a finding that the Veteran is entitled to special monthly compensation for loss of use of the foot under 38 C.F.R. § 3.350. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As explained above, the Veteran has asserted a claim of entitlement to a TDIU as part and parcel of his claims of entitlement to higher initial ratings for post-traumatic arthropathy of the right ankle and hyperkeratosis of the bilateral feet pursuant to Rice, supra. Therefore, the TDIU claim enumerated herein dates back to March 17, 2010, the date of service connection for the right ankle disability and hyperkeratosis of the bilateral feet. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). However, the Veteran also currently has a formal claim of entitlement to a TDIU pending from an appeal of an October 2018 rating decision. This claim is currently awaiting the scheduling of a Board hearing. Therefore, in order to avoid possible prejudice to the Veteran, the Board finds that the matter of TDIU raised pursuant to Rice should be remanded to the AOJ for consideration in the first instance. (Continued on the next page)   The matters are REMANDED for the following action: The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities from March 17, 2010, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran’s employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.