Citation Nr: 22017205 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-51 205 DATE: March 24, 2022 ORDER Entitlement to a rating higher than 10 percent from February 9, 2015 to April 16, 2015 and from September 1, 2015 onward for metatarsalgia of the feet is denied. Entitlement to a rating higher than 30 percent for painful scars of the feet is denied. Entitlement to an initial compensable rating for linear scars of the feet is denied. Entitlement to Special Monthly Compensation (SMC) based on aid and attendance, or by reason of being housebound with the exception of the period from April 17, 2015 to October 1, 2015 due to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's metatarsalgia is not manifest by neurological impairment, and is otherwise addressed by the maximum schedular rating. 2. The record shows that the Veteran's scars were at worst manifest by 5 or more painful scars measuring less than 144 sq. cm. and without instability. 3. The record shows that the Veteran's scars were at worst manifest by 5 or more painful scars measuring less than 144 sq. cm. and without instability. 4. The Veteran does not have a single service-connected disability rated at 100 percent disabling and he is not substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for service-connected bilateral metatarsalgia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.59, 4.71a, Diagnostic Code 5279. 2. The criteria for rating higher than 30 percent for painful scars of the feet are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.118, Diagnostic Code 7804. 3. The criteria for an initial compensable rating for linear scars of the feet are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.118, Diagnostic Code 7804. 4. The criteria for entitlement to SMC due to housebound status have not been met. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1984 to October 1986. The issues regarding higher ratings for the feet arise from rating decisions dated in September 2013 and November 2015. The Veteran testified before the undersigned at a hearing in June 2021; a transcript of that hearing is of record. The matters were previously remanded by the Board in October 2021 for additional development. Increased Rating 1. Entitlement to a rating higher than 10 percent from February 9, 2015 to April 16, 2015 and from September 1, 2015 onward for metatarsalgia of the feet is denied. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). With regard to the Veteran's metatarsalgia, the relevant period for appellate consideration is from up to one year prior to February 9, 2015, the date of his claim for a higher rating. At his hearing, the Veteran testified that his foot disabilities require him to use a wheelchair and crutches to walk. He described intense pain and numbness in the feet. He stated that he could lose his balance and fall. Diagnostic Code 5279 provides a single rating of 10 percent for metatarsalgia, anterior (Morton's disease), unilateral or bilateral. 38 C.F.R. § 4.71a. A higher rating is not available under DC 5279 as a matter of law. The Veteran is currently in receipt of a 10 percent rating during the period on appeal. The Veteran has not alleged that the diagnostic criteria are inadequate, and extraschedular consideration is not warranted. Thus, a higher rating under that code is not warranted. The Board has considered whether a rating under a separate diagnostic code is warranted to adequately compensate the Veteran's symptoms of metatarsalgia, particularly alleged numbness in the feet. A private examination dated July 2014 found that the Veteran had metatarsalgia bilaterally. The examination addressed multiple foot disabilities and noted that they prevented prolonged weight-bearing and prolonged ambulation. However, it is unclear what functional impact the examiner attributed to metatarsalgia. April 2015 and June 2019 VA foot examinations did not find metatarsalgia. A December 2021 VA foot examination found that the Veteran had metatarsalgia, and also evaluated multiple foot disabilities not in appellate status. The Board notes that the Veteran complained of numbness on examination, however, the examiner did not note numbness on examination, and found that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to the conditions listed. The Veteran was not shown to have total loss of use of the feet. The medical evidence of record does not attribute any neurological problem to the Veteran's metatarsalgia. The Veteran is considered credible in his assertion that he has numbness in his feet. However, the Veteran's contentions that the numbness is due to his metatarsalgia is not given as much probative weight as the medical evidence of record, as those examiners possess medical expertise the Veteran has not been shown to have. The Board finds that the Veteran's metatarsalgia is not manifest by neurological impairment. Given the above, the Board finds that a rating in excess of 10 percent for metatarsalgia, or a separate rating, is not warranted. 2. Entitlement to a rating higher than 30 percent for painful scars of the feet is denied. 3. Entitlement to an initial compensable rating for linear scars of the feet is denied. The Veteran's scars are rated at 30 percent during the period on appeal. The Veteran has a separate noncompensable rating for linear scars. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 and these regulations were revised, effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's case. Pre-August 13, 2018, Diagnostic Code 7801 provides that scars of other than the head, face or neck that are deep and nonlinear are assigned ratings based on the area or areas of the scar(s). Effective August 13, 2018, Diagnostic Code 7801 was amended to remove characterization as "deep and nonlinear scars" which was replaced with characterization of scars with "underlying soft tissue damage." Pre-August 13, 2018, Diagnostic Code 7802 provides a 10 percent rating for scars of other than the head, face or neck that are superficial and nonlinear if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater. Id. Diagnostic Code 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Diagnostic Codes 7804 and 7805 were unaffected by the recent revisions. Based on either the old or new criteria, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. Id. Based on either the old or new criteria, under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered, should be evaluated under the appropriate diagnostic code. Turning to the relevant evidence of record, an August 2013 VA examination noted 4 scars on the feet. One scar on the dorsal right foot measured 2.5cm by .5cm, and another 1 cm by .25cm. One scar on the dorsal left foot measured 2cm by .5cm, and another 3cm by .5cm. The examiner noted that all of the scars are painful, with no skin breakdown and were all superficial. An April 2015 VA examination showed 5 or more painful scars of the feet. The examiner noted linear scars of 1cm and 5.5cm on the right foot and linear scars measuring 4cm, 2cm, and 3cm on the left foot. There were no superficial or deep nonlinear scars. None of scars resulted in limitation of function. None of the scars were unstable. A June 2019 VA foot examination noted the Veteran's scars of the feet. None of the scars were noted to be painful or unstable, or have an area greater than 39 sq. cm. The examiner noted the scars to measure 6cm by 2.5cm, 2cm by 2.5cm, 9cm by .1cm, 5cm by 5cm, 2.5cm by 2.5cm, and 6cm by .1cm. The most recent VA examination in December 2021 showed 5 or more painful scars (6 in total) of the feet. None of the scars were unstable. The scars were described as linear, and measured 6.5cm by 2cm, 8cm by .5cm and 4.5cm by .5cm on the right foot. The linear scars measured 7cm by .5cm, 8cm by .5cm, and 5.5cm by 1cm on the left foot. 3 of the scars were tender to palpation and none had underlying soft tissue damage. The approximate total area of the scars measured 32 sq. cm. There was no limitation of function noted except for an inability to wear tight socks or shoes for prolonged periods. At his hearing testimony, the Veteran noted that the linear scars and painful scars are the same scars. This is supported by the medical evidence of record. The Veteran also reported numbness and pain in the scars. The Veteran testified that the scars break open. The Board notes that the old rating criteria do not provide the Veteran for a higher disability rating, as the only applicable rating in excess of 30 percent is for scars with a total area of 144 sq. inches, which the record does not show here. The Veteran's scars measure 32 sq. cm. The record supports a finding of 5 or more scars that are painful. The Veteran has 6 linear scars that are painful. This warrants a single 30 percent rating. The Board notes that the record does not show that any of the scars are unstable, thus adding 10 percent for unstable scars is not warranted. The Board acknowledges the Veteran's contention regarding the scars breaking open, but the Board affords greater probative weight to the medical examiners who applied their medical expertise and found that the scars were not unstable. Thus, the Board finds that the record shows that the Veteran's scars were at worst manifest by 5 or more painful scars measuring less than 144 sq. cm. and without instability during the period on appeal. As such, a single 30 percent rating is the maximum rating warranted. 4. Entitlement to Special Monthly Compensation (SMC) based on aid and attendance, or by reason of being housebound with the exception of the period from April 17, 2015 to October 1, 2015 due to service-connected disabilities, is denied. The Veteran contends that his service-connected disabilities confine him to his home and require him to use a wheelchair and walking crutches to move around his house. He alleges that he has difficulty getting to the bathroom, and has total loss of use of the feet. The Board notes that the Veteran was granted SMC based on housebound status from April 17, 2015 to August 31, 2015, due to a temporary 100 percent rating for his service-connected metatarsalgia and additional ratings independently rated at 60 percent or more. The Veteran does not currently have any disability rated at 100 percent. Entitlement to SMC based on housebound status will be granted when a veteran has a single service-connected disability rated as 100 percent disabling and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran is permanently housebound when he is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. 38 C.F.R. § 3.350 (i). The Veteran attended a VA Aid and Attendance or Housebound examination in December 2021. The examiner noted the Veteran's complaints of foot pain and numbness. The Veteran stated that his wife had to help him use forearm crutches to get to the bathroom because his wheelchair will not fit in the bathroom. He reported a history of falls. The Veteran reported that on a typical day, he would wake up and get into his wheelchair, and stated that he was unable to get out of the house because he was not allowed to put in a ramp and he could not get out in a wheelchair. The examiner that the Veteran would have limited motion, lack of coordination, weight bearing deficit, balance deficit, and propulsion deficit due to foot pain. He noted that the Veteran leaves only for necessary medical appointments. The examiner opined that the Veteran should be able to dress himself and keep himself clean. He reasoned that the Veteran has use of his hands and it involves little standing. He opined that the Veteran could feed himself, and reasoned that he has good fine motor skills and no problems with upper extremities. He opined that the Veteran could attend to wants of nature, and reasoned that the use of a wheelchair for painful scars on the feet is not known to him. He opined that the Veteran could protect himself from hazards. The examiner also opined that the Veteran did not have a loss of use of both feet, and noted that the preference to use a wheelchair is not loss of use. The examiner stated that the Veteran was confined to his dwelling because he preferred to use a wheelchair and not because of his service-connected scars or foot disabilities. The examiner stated that medical literature did not support the Veteran's use of a wheelchair. He noted that the treatment for metatarsalgia is to rest, ice, use pain medication, and wear comfortable footwear. He noted that painful scars can be treated with surgical revision or conservative treatments. He noted that use of a wheelchair is not a recognized treatment for any of the Veteran's service-connected conditions. The Board has considered the Veteran's statements that he is confined to his home due to his disabilities. While the Board finds the Veteran credible in his contention that he experiences foot pain and it limits his walking and standing, the Board does not find his assertion that he requires the use of a wheelchair to be as credible in the face of a medical opinion indicating that such wheelchair use is not proper given his disabilities. The December 2021 medical examiner applied her medical expertise in determining the limitations caused by the Veteran's disabilities. She noted expected difficulty in many aspects of functioning, but did not believe the Veteran's disabilities warranted use of a wheelchair, thus, not confining the Veteran to his home. The Board affords this opinion greater probative weight, as the Veteran lacks medical expertise to determine whether a wheelchair is medically appropriate. Given the above, the Board finds that the record does not show that the Veteran has been permanently housebound by reason of his service-connected disabilities. Entitlement to SMC is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.