Citation Nr: 21010363 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-52 016 DATE: February 24, 2021 ORDER An initial rating of no more than 10 percent is granted for bilateral calluses of the feet for the entire period on appeal prior to January 8, 2020, subject to the law and regulations governing the award of monetary benefits. A rating in excess of 30 percent for bilateral calluses of the feet from January 8, 2020 is denied. FINDINGS OF FACT 1. The Veteran does not have residual scarring of the feet due to his service-connected bilateral calluses. 2. Prior to January 8, 2020, the service-connected bilateral calluses of the Veteran’s feet more nearly approximated than not functional impairment analogous to moderate bilateral flatfeet, to include with respect to pain on manipulation and use of the feet. 3. Prior to January 8, 2020, the bilateral calluses of the Veteran’s feet were not shown to have been manifested by functional impairment analogous to severe manifestations of flatfeet, such as marked deformity, accentuated pain on manipulation and use, and indications of swelling on use. 4. From January 8, 2020, the bilateral calluses of the Veteran’s feet have not been manifested by functional impairment analogous to pronounced manifestations of bilateral flatfeet, such as marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, none of which are improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for bilateral calluses of the feet have been met for the entire period on appeal prior to January 8, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for a rating in excess of 30 percent for bilateral calluses of the feet from January 8, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1983 to May 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The RO granted service connection and a 0 (zero) percent (noncompensable) rating for bilateral calluses of the feet, effective July 27, 2017. In a June 2016 rating decision, the RO made the award effective from July 27, 2014. In November 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Following the November 2019 hearing, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development, to include a new VA examination. In July 2020, after taking further action, the AOJ increased the rating for the Veteran’s bilateral calluses to 30 percent, effective January 8, 2020. The noncompensable rating prior to January 8, 2020 was otherwise confirmed and continued and the case was returned to the Board. There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a compensable rating for bilateral calluses of the feet prior to January 8, 2020 Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s calluses were initially evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7819, which pertains to benign skin neoplasms. Under that diagnostic code, such neoplasms are to be rated on the basis of disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7804, or 7805), or impairment of function. Here, the Veteran’s service-connected calluses affect his feet; they do not result in disfigurement of the head, face, or neck. In addition, the record does not reflect that he has residual scarring. Treatment records note scars on other parts of the body, such as the right arm and left thumb, but not of the feet. See, e.g., VA medical records dated in September 2006, July 2015, and September 2016. No scars were noted on a November 2015 VA examination, and the more recent January 2020 VA examination likewise found no scarring. Although the Veteran has reported scarring, including at the November 2019 hearing, his description appears to relate to the recurrent nature of the calluses themselves, rather than scars per se. The 30 percent rating from January 8, 2020 was assigned based on functional impairment analogous to that encountered with bilateral flatfeet, as set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board agrees that consideration of that diagnostic code is appropriate under the circumstances, in light of the Veteran’s complaints of pain, and finds that such criteria must be considered and applied for the period on appeal prior to January 8, 2020. 38 C.F.R. § 4.20. Under Diagnostic Code 5276, mild symptoms of flatfoot which are relieved by built-up shoes or arch supports are rated as noncompensably disabling. Where symptoms are moderate, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet, a 10 percent rating is warranted. Severe manifestations, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities warrant a 30 percent rating. Pronounced bilateral flatfoot, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, none of which are improved by orthopedic shoes or appliances, warrants a 50 percent disability rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All of the evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for “mild” includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id. at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Definitions for “severe” include extremely intense. Id. at 1012. The Veteran has reported pain related to the bilateral calluses of his feet, including at the November 2019 hearing. Specifically, he has reported that the calluses keep reappearing and have to be trimmed; and that they are painful, resulting in impairment of standing and ambulation. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. Further, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Board notes that the November 2015 VA examiner described the severity of the Veteran’s condition as mild. Although the examiner’s description is probative evidence for consideration, the Board is not bound by that description. Considering the evidence in its totality as it applies to the period prior to January 8, 2020, the Board is persuaded that the Veteran’s account of functional impairment is consistent with, and analogous to, the criteria for a 10 percent rating for that period under Diagnostic Code 5276, which contemplates moderate impairment occasioned by, among other things, pain on manipulation and use of the feet. The record does not reflect that the Veteran’s symptoms were relieved by built-up shoes or arch supports. In addition, while his disability it not shown to have been manifested by symptoms such as deviation of the weight-bearing line or inward bowing of the tendo achillis, he has described other impairments associated with his calluses, including the need for recurrent care, that reasonably demonstrate “moderate” impairment. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to January 8, 2020. The record, including the November 2015 VA examination report and the Veteran’s November 2019 hearing testimony, does not reflect a level of symptomatology that would warrant a 30 percent rating; i.e., the impairment is not demonstrated as being extremely intense. Moreover, there were no findings of marked deformity or indications of swelling on use, or symptoms analogous thereto, during this period. Considering all factors, the Board finds that a rating in excess of 10 percent is not warranted prior to January 8, 2020, to include on the basis of “staged” ratings. 2. Entitlement to a rating in excess of 30 percent for bilateral calluses from January 8, 2020 The Board finds that from January 8, 2020, the bilateral calluses of the Veteran’s feet have not been manifested by functional impairment analogous to pronounced bilateral flatfoot, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, none of which are improved by orthopedic shoes or appliances. The Board acknowledges that the January 2020 VA examination found marked pronation of the left foot; however, there was no such finding as to the right foot. In other words, marked pronation was not present bilaterally. Moreover, the examiner explicitly found that neither foot was manifested by extreme tenderness of plantar surfaces; “inward” bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel); or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet. Neither is such impairment demonstrated by the other evidence of record pertaining to this period. Further, the January 2020 VA examiner described the Veteran’s overall impairment as moderate, which, while not controlling, is probative evidence against a finding of pronounced severity. For all of these reasons, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran meets or more nearly approximates the criteria for a rating in excess of 30 percent from January 8, 2020, pursuant to Diagnostic Code 5276, to include on the basis of “staged” ratings. The record does not reflect that the Veteran’s bilateral calluses of the feet are manifested by symptomatology that would warrant consideration of any other, more favorable, diagnostic code(s). As a final matter, the Board notes that is cognizant of the fact that multiple changes have been made to the criteria for evaluating disabilities of the musculoskeletal system under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed. Reg. 76453. However, the revisions did not affect Diagnostic Code 5276. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.