Citation Nr: 21039670 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-00 393 DATE: July 1, 2021 ORDER Entitlement to an initial rating of 20 percent for recurring callouses on the left foot is granted. REMANDED Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) is remanded. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, his left foot callouses are manifested by symptoms that approximate moderately severe impairment. CONCLUSIONS OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent rating for recurring left foot callouses have 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 (DC) 5299-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1999 to December 2003 and from December 2004 to September 2005. This appeal comes from a June 2013 rating decision. The Veteran filed a Notice of Disagreement (NOD) in July 2013, which resulted in a November 2015 Statement of the Case (SOC). Thereafter, the Veteran filed a substantive appeal in January 2016. The claims were previously before the Board of Veterans' Appeals (Board) in November 2018. At that time, they were remanded for further development. Increased Rating 1. Entitlement to an initial rating of 20 percent for recurring callouses on the left foot is granted. The Veteran is seeking increased rating for his service-connected recurring callouses on the left foot. The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, DCs are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. § 4.10. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the Rating Schedule that most closely identifies the part or system of the body involved; the last two digits will be "99" for all unlisted conditions. In this case, the Veteran's recurrent left foot callouses are rated as 10 percent disabling under DC 5299-5284, which represents an unlisted left foot disability evaluated by analogy to foot injuries. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under DC 5284, a 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Notably, the Veteran's left foot calluses were rated by analogy under DC 7804 for unstable or painful scar(s) when the claim was previously before the Board in November 2018. At that time, the Board remanded the claim because a May 2013 VA examination did not indicate whether the scar was painful. Since the Board's remand, the applicable DC has been changed to DC 5299-5284. As discussed in detail below, the Veteran's calluses of the left foot is more accurately reflected by DC 5299- 5284 because the evidence demonstrates that the Veteran's calluses are not scars and the documented symptoms of pain and function loss are more appropriately and favorably rated by DC 5284, which contemplates multiple foot diagnoses, symptomatology, and functional impairment resulting from foot injuries. Accordingly, the Board will address the Veteran's calluses of the left foot disability pursuant to DC 5284. The Veteran underwent a VA examination in October 2020, where it was found that he had pain on movement and pain on weight-bearing. Specifically, the Veteran described having sharp throbbing pain, which is relieved when he receives treatment by a podiatrist every four to six weeks. He rated his pain 6/10 while sitting and 9/10 when walking prior to getting treatment at podiatrist. The Veteran reported taking time off work for his visits. In addition, the Veteran uses foot pads occasionally and soaks his feet on weekly basis to treat his symptoms. The Veteran reported functional loss such as difficulty with prolonged walking, running, and sitting. He endorsed gait change because he tries to alleviate pressure from his foot. The examiner found that the Veteran has pain that significantly limits functional ability during flare-ups or when the foot is being used over a period of time. The examiner also noted pain with prolonged walking or standing. The record also has a VA examination from September 2019, where the Veteran reported having left foot pain that he treats with motrin. The pain limits the Veteran's mobility and it is accentuated on use. The examiner noted pain on weight-bearing. Overall, the examiner classified the Veteran's condition as mild. During a May 2013 VA examination, the Veteran reported experiencing callouses every couple of weeks. At that time, he reported that he treats the condition with pads and callous remover. In sum, throughout the period on appeal, the Veteran has complained of constant pain due to his calluses of the left foot. The Board notes that VA examinations completed during the appeal period have reflected that this pain caused by the calluses are exacerbated by weight bearing, leading to functional impairments in standing and walking. Combined with the frequency of the need for maintenance to relief pain, the severity of the Veteran's functional loss approximates a level contemplated by moderately severe foot injury. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 20 percent rating for the Veteran's calluses of the left foot under DC 5284 is met. Nevertheless, the Board finds that the preponderance of the evidence is against finding that the Veteran's left foot calluses results in an impairment consistent with the maximum 30 percent rating. The Veteran reports that his pain subsides after a visit to the podiatrist during the October 2020 examination. Furthermore, the Veteran did not report any time loss from work due to his condition during the September 2019 VA examination. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional impairment due to impaired ability with walking and standing due to pain on weight bearing. However, even considering the Veteran's lay reports of symptoms and functional impairment, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating severe foot injuries. Therefore, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran's recurring callouses on the left foot. REASONS FOR REMAND 2. Entitlement to an initial compensable rating for PFB is remanded. A skin examination from September 2019 shows that the Veteran uses over the counter topical medication constantly or near constantly to treat his PFB. The Veteran also underwent a VA examination in July 2020, where the examiner noted that he uses topical medication called Lotrimin for infection. The Board recognizes that the July 2020 examiner did not recognize the Veteran's PFB diagnosis. To the contrary, she found that he did not have a current skin condition, but she noted that Lotrimin is being used. It is unclear to the Board if the Lotrimin was being used to treat his PFB. However, considering the September 2019 examination that shows usage of over the counter topical medication without specifying the name of the medication, the Board finds that a remand to clarify the type of medication the Veteran uses to treat his PFB is necessary before the claim can be adjudicated. Moreover, whether the Veteran is entitled a compensable rating, in part, depends whether he uses systemic therapy. In Burton v. Wilkie, the Court of Appeals for Veterans Claims (the Court) addressed "systemic therapy" in the context of topical treatment. The Court held that the method by which the treatment works is another factual circumstance for consideration when determining whether a topical treatment can be deemed systemic therapy. Burton v. Wilkie, 30 Vet. App. 286, 291 (2018). Additionally, the Court held that a finding of systemic therapy is not limited to the use of corticosteroids or immunosuppressive drugs. Rather, the VA must determine whether any given treatment is "like" a corticosteroid or other immunosuppressive drug in that it affects the body as a whole. Id. at 295. The Court added that determining whether a treatment is systemic therapy is a factual determination that will likely require a medical opinion for resolution. Id. For the foregoing reasons, a remand is necessary to clarify the type of medication the Veteran uses and whether the medication the Veteran uses can be considered as a systemic therapy. The matter is REMANDED for the following action: Forward the claims file to an appropriate examiner to determine whether the Veteran uses systemic therapy to treat his pseudofolliculitis barbae. It is in the discretion of the examiner if an additional physical examination is necessary. In rendering the requested opinion, the examiner should note the term "systemic therapy" means treatment pertaining to or affecting the body as a whole; and "topical therapy" means "treatment pertaining to particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." See Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). The examiner should also note that the Veteran's use of topical medications could be considered systemic therapy by the method by which the topical treatment works. For example, a topical treatment may be said to affect the body as a whole if it circulates through the bloodstream. See Burton v. Wilkie, 30 Vet. App. 286 (2018). The examiner should answer the following questions: a) Identify any medication used to treat the Veteran's pseudofolliculitis barbae. b) Does any of the medication the Veteran uses to treat his pseudofolliculitis barbae work "like" a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole? c) For each identified medication, does it affect the body as a whole in treating skin symptoms? Or is it applied by direct contact with the skin, localized treatment of a dermatological condition? The examiner should consider the finding that the Veteran uses OTC topical medication in the September 2019 VA examination and the July 2020 disability benefit questionnaires that shows use of Lotrimin. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.