Citation Nr: 21026928 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-23 499 DATE: May 4, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for hallux valgus and hallux rigidus, status post arthoplasty left third toe with history of fracture left great toe is granted. Entitlement to an initial compensable disability rating for bilateral foot hyperkeratotic lesions and plantar warts is denied. Entitlement to a disability rating in excess of 50 percent for bilateral pes planus with degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran's hallux valgus and hallux rigidus, status post arthoplasty left third toe with history of fracture left great toe has been manifested by symptoms indicative of overall severe left foot impairment. 2. The Veteran's bilateral foot hyperkeratotic lesions and plantar warts has not involved at least 5 percent of the entire body or at least 5 percent of exposed areas affected and has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 3. The current 50 percent rating for bilateral pes planus with degenerative arthritis is the maximum schedular rating allowed. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for hallux valgus and hallux rigidus, status post arthoplasty left third toe with history of fracture left great toe have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.31, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2020). 2. The criteria for a compensable rating for bilateral foot hyperkeratotic lesions and plantar warts have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.118, Diagnostic Code 7806 (2020). 3. The criteria for a rating in excess of 50 percent for bilateral pes planus with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.71a, Diagnostic Code 5276 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty April 1981 to June 1992 and from March 1998 to December 2008. He had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision rendered by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded the appeal for further development. 1. Entitlement to a 30 percent rating, but no higher, for left foot hallux valgus, rigidus, status post arthoplasty left third toe with history of fracture left great toe is granted. The Veteran's left foot hallux valgus, rigidus, status post arthroplasty left toe is rated under Diagnostic Code (DC) 5284 for "other foot injuries." DC 5284 is, in essence, a "catch-all" provision which is intended to cover a variety of foot disabilities. See VAOPGCPREC 9-98 (Aug. 14, 1998). DC 5284 provides for a 30 percent rating for severe disability, a 20 percent rating for moderately severe disability, and a 10 percent rating for moderate disability. The Note following these criteria indicates that disability with actual loss of use of the foot should be rated 40 percent disabling. The words "moderate," "moderately severe" and "severe" are not defined in the VA Rating 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". See 38 C.F.R. § 4.6. A December 2015 orthopedic treatment record noted that the Veteran presented for a recheck of hammertoe repair of the left second digit. The surgery was in October 2015. A March 2019 imaging report reflected left foot arthritis. At a July 2019 VA foot conditions examination, the examiner diagnosed bilateral hammer toes, hallux valgus left, hallux rigidus left, and arthritis left. The examiner noted a history of left great toe fracture in the 1980s, and a left third toe arthroplasty in 2014. The Veteran reported chronic pain in his feet, increasing with ambulation. Specifically, the Veteran stated that it was hard to stand up or walk very much. Regarding hallux valgus and hallux rigidus, the examiner noted that the Veteran had severe symptoms, with functional equivalent to amputation of great toe. Regarding the left great toe fracture, the examiner noted that this condition had healed and was no longer symptomatic. Based on the foregoing, the Board finds that the Veteran's hallux valgus and hallux rigidus, status post arthoplasty left third toe with history of fracture left great toe more closely approximates an overall severe disability of his left foot, consistent with a 30 percent rating under DC 5284. Here, the Board finds the June 2019 VA examiner's assessment to be the most probative. The examiner, after interviewing and physically examining the Veteran, as well as reviewing the claims file, opined that the symptoms of the Veteran's hallux valgus and hallux rigidus are severe. However, loss of use of the left foot has not been shown. Although the Veteran reports difficulty walking on his feet, he is still able to do so. Moreover, the Veteran is also separately service-connected for bilateral pes planus, which affects his ability to walk on his feet as well. Consequently, a rating higher than 30 percent is not warranted under DC 5284. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the rating criteria under DC 5284 were not substantively changed. In sum, a 30 percent rating, but no higher, is granted for hallux valgus and hallux rigidus, status post arthoplasty left third toe with history of fracture left great toe. 2. Entitlement to a compensable rating for bilateral foot hyperkeratotic lesions and plantar warts is denied. The Veteran's bilateral foot hyperkeratotic lesions and plantar warts have been rated under 38 C.F.R. § 4.118, DCs 7820-7806. 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 the hyphen. 38 C.F.R. § 4.27. During the pendency of the appeal, certain parts of the rating criteria for evaluating skin conditions were revised. See 83 Fed. Reg. 32,592 (July 13, 2018). Effective August 13, 2018, a new General Rating Formula for the Skin revised Diagnostic Codes 7806, 7809, 7813, 7815 to 7817, 7820 to 7822, and 7824 to 7829. See 38 C.F.R. § 4.118 (2018). The old regulation will be considered for periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the old regulation, DC 7820 (infections of the skin not listed elsewhere), instructs the rater to rate the disability as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801-7805) or dermatitis (DC 7806). Under DC 7806, a noncompensable rating is warranted when the skin disorder involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when the skin disorder involves at least 5 percent, but less than 20 percent, of the entire body or of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Id. Higher ratings are available when the skin disorder involves greater than 20 percent of the entire body or exposed areas, or intermittent systemic therapy required for longer than six weeks. A January 2015 private treatment record noted that the Veteran presented with plantar warts of the bilateral feet, right greater than left. A podiatry referral was entered. A March 2015 private orthopedic record noted that the Veteran presented for evaluation of a hyperkeratotic lesion to the plantar aspect of the right foot. He stated that it caused him some pain and discomfort when ambulating. The Veteran had tried cutting the lesion out himself with temporary relief of symptoms. He also had flat feet which could be contributing to his overall pain. The Veteran stated that it hurt especially in dress shoes. Physical examination revealed a hyperkeratotic lesion under the third metatarsal of the right foot, to the hallux and second digit. A debridement was done with a 15 blade to patient tolerance. The examiner wrote a prescription for urea topical cream to help with the hyperkeratotic lesion. A May 2015 orthopedic record noted that the Veteran presented for evaluation of painful callus sand pes planovalgus to the feet bilaterally. Physical examination revealed a lesion under the right submetatarsal and to the lesser digits of the hammertoes. A December 2015 treatment record noted that the Veteran had painful plantar keratosis to the right foot. The treatment provider indicated that it was necessary to excise the lesion along the plantar aspect of the right foot. A July 2016 orthopedic record noted that the Veteran presented with a painful lesion under the third metatarsal head of the right foot. He had difficulty ambulating when the callus formation built up, causing pain and discomfort. Physical examination revealed a hyperkeratotic lesion to the distal portion of the left third digit, as well as the plantar right submetatarsal. Debridement was done with a 15 blade. A December 2017 treatment record noted that there was a hyperkeratotic lesion along the distal portion of the left third digit and along the planar right forefoot. The lesion was debrided to patient tolerance and without incidence. The report of a July 2019 VA skin diseases examination reflects that the Veteran developed calluses as a result of his pes planus. The calluses continued to grow and required medical attention. Podiatry shaves the calluses. The examiner noted that the Veteran's plantar warts had resolved. Physical examination revealed that the Veteran's hyperkeratotic lesions affected less than 5 percent of total body area and none of the exposed areas. Following a review of the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to a compensable disability rating for bilateral foot hyperkeratotic lesions and plantar warts. There is no probative evidence that the Veteran's bilateral foot hyperkeratotic lesions and plantar warts affected at least 5 percent of his entire body or his exposed areas, or that his condition required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. DC 7806. The Board notes that the Veteran's use of a topical cream does not constitute systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351, 1354-55 (Fed. Cir. 2017); see also Burton v. Wilkie, 30 Vet. App. 286, 291 (2018). The Board has also considered the revised criteria, which, under DC 7820, direct the rater to evaluate infections of the skin not listed elsewhere under the General Rating Formula for the Skin. The Board finds, however, that a compensable rating is not warranted under the General Rating Formula because, as explained above, the evidence does not indicate that the Veteran has had characteristic lesions involving at least 5 percent of the body or exposed areas, or requiring intermittent systemic therapy. 38 C.F.R. § 4.118 (effective August 13, 2018). Finally, the Board has considered whether a compensable rating is warranted under other potentially applicable criteria. However, there are no findings of functional impairment unrated that arise from his bilateral foot lesions. While DC 7804 provides for a 10 percent rating for one or two scars that are unstable or painful, the Veteran is already being compensated for bilateral foot pain resulting in difficulty walking under DCs 5276 and 5284. To assign separate compensable ratings for foot pain would violate the rule against pyramiding. See 38 C.F.R. § 4.114. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a disability rating in excess of 50 percent for bilateral pes planus with degenerative arthritis is denied. As noted above, the rating criteria pertaining to musculoskeletal disabilities were revised effective February 7, 2021; however, the rating criteria pertaining to pes planus, Diagnostic Code 5276, were not substantively changed. The Veteran has been awarded the maximum available schedular rating under 38 C.F.R. § 4.71(a), DC 5276 for bilateral pes planus. A higher schedular rating is not available under any other diagnostic code pertaining to the feet. Id. When a condition is specifically listed in the rating schedule (disability, in this case), it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). As such, there is no legal basis upon which to award a higher schedular rating for bilateral pes planus. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.