Citation Nr: 21015433 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 10-08 059 DATE: March 17, 2021 ORDER 1. Entitlement to an evaluation in excess of 10 percent for a plantar wart, left foot 4th metatarsal is denied. 2. Entitlement to service connection for a thoracolumbar spine condition, claimed as a back condition, is denied.¬ FINDINGS OF FACT 1. The Veteran’s plantar wart, left foot 4th metatarsal, disability is manifested by no more than moderate symptoms. 2. The preponderance of the evidence of record is against finding that the Veteran has had a lower back disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for plantar wart, left foot 4th metatarsal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284-7819. 2. The criteria for service connection for a lower back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to March 1979 in the United States Air Force, from September 1980 to March 1983 in the United States Navy and from March 1984 to January 1993 in the United States Navy. The Veteran died in December 2019. The appellant is his surviving spouse and has been found to be a proper substitute claimant. In March 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2015 and April 2016, the Board remanded the Veteran’s claims for further development. In August 2017, the Board denied the issues on appeal. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted the parties’ Joint Motion for Remand (JMR) and remanded the appeal to the Board for action consistent with the terms of the JMR. In compliance with the JMR, the Board remanded these issues in a May 2019 decision. The Board finds that the RO has substantially complied with the May 2019 Board remand directives and the October 2018 JMR. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that at the time of his death, the Veteran was rated at 100 percent for cancer of the liver with cirrhosis since October 7, 2017, and had an overall rating of 80 percent from October 1, 2015, and 70 percent from December 27, 2007. 1. Entitlement to an evaluation in excess of 10 percent for a plantar wart, left foot 4th metatarsal The Veteran contended that he is entitled to a higher rating because his plantar wart on his left foot resulted in difficulty ambulating and an abnormal gait. The Veteran’s plantar wart is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries, and 7819, benign skin neoplasms. Under Diagnostic Code 7819, ratings are based on impairment of function. 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 severe 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. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. 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 and, therefore, not be reflected on range-of-motion testing. 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 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). The Veteran underwent a VA skin examination in November 2019. The examiner noted the Veteran had a diagnosis of plantar wart covering less than 5% of the exposed area and none of the total body area. The examiner opined the Veteran’s plantar wart would not impact his ability to work. The VA examiner specifically addressed the June 2017 VA examination and opined that the Veteran’s meralgia paresthetica, which is a compression of the lateral femoral cutaneous nerve, caused the Veteran’s functional limitations. The examiner noted that the causes of that condition are idiopathic or due to entrapment or neuroma formation. The examiner opined there was no correlation between plantar warts and meralgia paresthetica. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left foot plantar wart. The Board acknowledges the Veteran’s reports of symptoms and that there was functional loss due to difficulty ambulating and an abnormal gait. However, even considering the Veteran’s reports of symptoms and functional loss and his training as a nurse, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating moderately severe other foot injuries. As discussed above the November 2019 VA examiner opined that the Veteran’s symptoms were the result of his right hip disorder, not the plantar wart. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for plantar wart. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for a thoracolumbar spine condition, claimed as a back condition The Veteran contended that the examiner for the October 2015 and December 2016 VA contract examinations was not competent as the examiner was an internist and not an orthopedist. The Board will disregard the opinion of the October 2015 and December 2016 contract examiner due to his inadequate opinions. The Board also notes that the Veteran is separately service connected for trochanteric pain syndrome (Claimed as right hip condition), limited flexion of the right hip, and a cervical spine condition. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a lower back condition and did not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered whether the Veteran’s pain alone could qualify as a disability, but as discussed further below, the Veteran’s pain is due to his hip condition, not a lower back condition. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. The November 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of lower back pain, he did not have a diagnosis of a thoracolumbar condition. The VA examiner indicated that the Veteran did not have low back pain, but instead had reported shooting pain on the lateral aspect of the right hip radiating into his thigh. The examiner indicated that this was more consistent with the diagnosis of record, meralgia paraesthetica, a hip condition. The examiner did acknowledge a diagnosis of backache and sciatica appearing in the record but noted that the claimant denied symptoms in his sciatic distribution and denied back pain. The examiner further noted that an EMG did not document lumbar radiculopathy in 2006. While treatment notes from 2006 showed a diagnosis of lumbosacral strain and other showed a diagnosis of backache and sciatica, the Veteran denied symptoms consistent with those conditions. The Veteran was later diagnosed with right lateral femoral cutaneous sensory neuropathy and/or meralgia paraesthetica, which were more consistent with his symptomology. Notably, the record does not contain any objective diagnostic evidence of a thoracolumbar condition. The Board acknowledges the Veteran’s opinion that his low back condition was associated with his military service and application for service connection for a low back condition but finds the Veteran’s condition more consistent with a right hip condition. The Veteran’s opinion was based on his training as a nurse. However, such conclusions were based, at least in part, on an inaccurate factual premise. At the November 2019 VA examination, the Veteran denied any symptoms or manifestations of a lumbar spine condition. Furthermore, the Board notes that the manifestations of the Veteran’s hip condition are service-connected. Therefore, the Board assigns the Veteran’s nexus opinion no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Consequently, the Board gives more   probative weight to the November 2019 VA examiner’s findings. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.