Citation Nr: 21020783 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-44 235 DATE: April 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial disability rating in excess of 10 percent for left foot callus is denied. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran’s tinnitus manifested within one year of separation from service. 2. The Veteran’s left foot callus manifests in pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for left foot callus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7819-7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to October 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) regional office. In May 2020, the Veteran testified before the undersigned Veterans Law Judge. 1. Entitlement to service connection for tinnitus. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In this case, the record reflects that the Veteran served as a Multichannel Communications Equipment Operator. The Veteran asserts that in this occupation he was frequently exposed to loud noise from generators. During his May 2020 hearing, the Veteran reported that he began to experience intermittent tinnitus within a few months of separation from service. The Board has no reason to doubt the Veteran’s reports that his tinnitus manifested within one year of service and that he experiences it presently, and finds these statements credible. As tinnitus, a chronic disease, manifested within one year of service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to an initial disability rating in excess of 10 percent for left foot callus. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. This appeal stems from the Veteran’s January 2018 service connection claim for left foot callus. He asserts that he should be afforded a higher disability rating because the callus returns even when he soaks his foot and files down the callus. If he does not treat the callus in this manner, walking can be painful. The Veteran’s left foot callus is rated by analogy under Diagnostic Code 7819-7804 for unstable or painful scar(s); the Rating Schedule does not specifically contemplate ratings for calluses. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Diagnostic Code 7819 refers to benign skin neoplasms, while Diagnostic Code 7804 refers to scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrant a 10 percent rating. Three or four scars that are unstable or painful scars warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 provides that, if a scar is both unstable and painful, 10 percent may be added to the evaluation. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful, nor by one scar that is both unstable and painful. In that regard, while the Veteran’s left foot callus is painful, it is not unstable as contemplated by the rating criteria. There is no frequent loss of covering of skin over the scar; rather, according to a March 2018 VA exam, the Veteran removes hyperkeratotic skin himself when it becomes tough and hurts to walk on. The examiner noted this condition causes no functional impairment. While the Veteran indicated that he has flare-ups of the condition, he appeared to describe them in the same way he describes the condition under normal circumstances; that is, the skin becomes tough and he must soak and file his foot. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s left foot callus is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board has also considered whether a more favorable or additional disability rating may be assigned pursuant to rating criteria for disabilities of the foot. See generally, 38 C.F.R. § 4.71a, Diagnostic Codes 5269-5284. Upon review, however, the evidence does not reflect, and the Veteran does not assert, that the left foot callus impairs function of the foot beyond causing pain in the location of the callus. The March 2018 VA examination noted no functional impairment of the foot. Accordingly, the Board finds that the disability is best rated pursuant to the scar rating criteria. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and records do not show, that the Veteran’s left foot callus meets the criteria for an increased rating pursuant to Diagnostic Code 7804. The Board further notes, however, that the issue of consideration of an extraschedular rating was raised by the Veteran’s representative during the May 2020 hearing. The representative asserted that an extraschedular rating should be considered, but did not provide an argument as to why such a rating should be awarded. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran’s left foot callus is rated under Diagnostic Code 7804. The record shows that he has complaints of pain due to a callus of the skin measuring 2 centimeters by 2 centimeters. Diagnostic Code 7804 does not specifically mention calluses, but does contemplate pain related to non-disfiguring and stable scars. Here, manifestations of the Veteran’s left foot callus are reasonably contemplated by Diagnostic Code 7804, as this Diagnostic Code contemplates pain due to a skin injury. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for left foot callus under both the schedular criteria and on an extraschedular basis. 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. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.