Citation Nr: 22002733 Decision Date: 01/19/22 Archive Date: 01/19/22 DOCKET NO. 16-27 490 DATE: January 19, 2022 ORDER An initial disability rating of 40 percent, but no higher, for intractable plantar keratosis of the right foot is granted. An initial disability rating of 40 percent, but no higher, for intractable plantar keratosis of the left foot is granted. Special monthly compensation (SMC) based on the loss of use of both feet is granted. Service connection for obstructive sleep apnea is granted. The appeal for service connection for a hernia disability is dismissed. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The severity of the service-connected intractable plantar keratosis of the right foot most closely approximates the loss of use of the right foot. 2. The severity of the service-connected intractable plantar keratosis of the left foot most closely approximates the loss of use of the left foot. 3. The Veteran's sleep apnea is related to active duty service in the U.S. Army. 4. On August 6, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appeal service connection for a hernia disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, for intractable plantar keratosis of the right foot have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for a disability rating of 40 percent, but no higher, for intractable plantar keratosis of the left foot have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5284. 3. The criteria for an award of SMC under subsection (l) based on the loss of use of both feet have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350(b). 4. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for withdrawal of the appeal for service connection for a hernia disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to March 1988, November 1990 to May 1991, and March 2003 to March 2004 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. 1. An initial disability rating of 40 percent, but no higher, for intractable plantar keratosis of the right foot is granted. 2. An initial disability rating of 40 percent, but no higher, for intractable plantar keratosis of the left foot is granted. Disability evaluations 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. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In the October 2014 rating decision on appeal, the Veteran was granted service connection for intractable plantar keratosis of the right and left feet, and separate 20 percent ratings were awarded under DC 5284. Diagnostic Code 5284 pertains to "other" foot injuries. This code provides a 10 percent rating for a moderate injury, a 20 percent rating for a moderately severe injury, and a 30 percent rating for a severe injury. With actual loss of use of the foot, a 40 percent rating is assigned. While changes were made to a number of the musculoskeletal diagnostic codes effective February 7, 2021, the regulations pertaining to the feet were altered only to add DC 5269, pertaining to plantar fasciitis. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Mild is generally defined as "not being or involving what is extreme" or "not severe." Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree" or "serious." Id. at 1140. On VA examination in October 2014, the Veteran reported having a long history of severe calluses due to his foot disabilities. He received regular treatment by a podiatrist consisting of implants, skin removal, and creams. Functional loss included pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling, deformity, disturbance of locomotion, interference with standing, and a lack of endurance. His bilateral foot disability prevented him from standing or walking longer than 30 minutes. Following flare-ups or on repetitive use, the Veteran had to stay completely off his feet to recover from pain. The examiner opined that the disability was severe and "very much impair[ed] ambulation for any length of time." On November 2015 VA Aid and Attendance examination, it was noted that the Veteran had chronically painful lesions beneath the forefoot regions of both feet, compromising his ability to ambulate comfortably. In an April 2017 VA podiatry record, it was again noted that the Veteran was being seen for care of chronically painful lesions beneath the forefoot regions of both feet, which compromised his ability to ambulate comfortably. On VA examination in November 2020, the Veteran's podiatric treatment, consisting of implants, skin removal, and creams, was noted. His foot pain was 8/10, and worse in the mornings when the Veteran had difficulty taking steps. During flare-ups, the pain was 10/10. There was pain on use of the feet and on manipulation of the feet. There was extreme tenderness of the plantar surfaces of both feet. Arch supports and orthotics provided no relief. Functional loss included instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The disabilities chronically compromised weight-bearing. He was unable to walk for longer than 10 minutes, had difficulty rising from a sitting to standing position, and could not stand for longer than 10 minutes. He required the constant use of a walker. The examiner stated that the disability was severe and impaired ambulation for any length of time. At the August 2021 hearing, the Veteran testified that he could not walk far or stand for long, and stated that doing so felt like walking on a bed of nails. He required the constant aid of a walker and a cane due to his disabilities. During flare-ups, he could not walk or stand. He had constant calluses and reported that his doctor had to frequently cut out dead flesh from his feet. On VA examination in November 2021, the Veteran reported having flare-ups of foot pain every day, lasting for three to four hours. The pain was described as aching and throbbing. He had difficulty walking at all during these flare-ups. Functional loss included disturbance of locomotion, interference with standing, pain, and a lack of endurance. The examiner found that any task involving walking or standing would be difficult for the Veteran. The disabilities were severe and chronically compromised weight-bearing. Considering the pertinent evidence in light of the governing legal authority, the Board resolves any doubt in favor of the Veteran and finds that ratings of 40 percent for each foot most nearly approximate the severity of his disability throughout the appeal period. "Loss of use of a foot" is generally defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the United States Court of Appeals for Veterans Claims (Court) stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. Significantly, the Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. Here, the Board finds that the pain and functional loss caused by the Veteran's intractable plantar keratosis of the feet most nearly approximates the loss of use of the feet. The October 2014 and November 2020 VA examiners found that his disabilities are severe and impair ambulation for "any length of time." The 2015 and 2017 providers found that the disabilities compromise his ability to ambulate comfortably. The November 2020 VA examiner determined the Veteran cannot walk or stand for more than ten minutes. The November 2021 VA examiner found the Veteran has difficulty walking at all during flare-ups and that any task involving walking or standing would be difficult. Nearly all VA examiners found the disabilities "chronically compromise" his ability to bear weight. Further, the Veteran's testimony that he cannot walk or stand during flare-ups, which occur on a daily basis and last for hours, is both admissible, believable, and consistent with the findings of numerous medical providers. The Board acknowledges the VA examiners' findings that the Veteran's functional impairment of the feet would not be equally served by amputation with prosthesis. However, the determination of whether there is a loss of use is a legal one, requiring consideration of the impact of pain and functional impairment. See Tucker, 11 Vet. App. at 373. In light of the Veteran's disability picture as a whole described above, the Board finds the evidence is in at least equipoise as to whether the Veteran has a loss of use of his feet due to his bilateral intractable plantar keratoses. The Board has also considered the applicability of other diagnostic codes related to the feet, as well as the possibility of any higher rating. See 38 C.F.R. § 4.71a, DCs 5276-5284. However, a rating in excess of 40 percent per foot is not possible in light of the "amputation rule." The "amputation rule" provides that when assigning ratings, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Forty percent is the highest schedular rating allowable for the loss of use of a foot per the amputation rule. 38 C.F.R. §§ 4.68, 4.71a, DC 5167. As such, no higher rating can be assigned. For all the foregoing reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral intractable plantar keratoses is manifested by a loss of use of the feet. In reaching this decision, the Board considered the doctrine of reasonable doubt. 3. SMC based on the loss of use of both feet is granted, subject to the laws and regulations governing the payment of monetary benefits. VA's duty to maximize a claimant's benefits requires additional consideration of whether the Veteran's disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. He is not currently receiving any form of SMC. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding a claim for increased disability compensation may include the inferred issue of entitlement to SMC, even where the appellant has not expressly raised the issue of SMC.) A Note following the amputation rule pertaining to loss of use of a foot, 38 C.F.R. § 4.71a, DC 5167, provides that SMC may additionally be awarded. Generally, special monthly compensation is available when, as the result of a service-connected disability, a Veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule. The higher rates of compensation are often referred to as "Special Monthly Compensation" or, in short, "SMC." The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. SMC at the (k) rate is the basic level. Increasingly higher levels of SMC are available at the (l) through (t) rates. The (s) rate, however, is an aberration in the pattern of increasing compensation as the alphabetical letter progresses. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC at the (l) rate is payable if, as the result of his/her service-connected disabilities, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Here, the Veteran is entitled to SMC at the (l) rate because, as determined above, his bilateral intractable plantar keratoses is manifested by a loss of use of both feet. The Board has considered the other levels of SMC available, but finds that no other rate is applicable. 4. Service connection for obstructive sleep apnea is granted. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has current obstructive sleep apnea, documented in a November 2017 sleep study. With regard to the in-service incurrence of the disability, at the August 2021 hearing, the Veteran testified that he first experienced symptoms of his current sleep apnea during a deployment in 1990. He testified that teammates told him that he would stop breathing in his sleep, and that there would be a lapse of time before they heard him breathe again. They also told him that he snored loudly during sleep. The Veteran reported that he also experienced daytime sleepiness on a frequent basis. He testified that after his deployment, he sought treatment and was prescribed a C-PAP machine. He reported that despite using the machine, his symptoms have not improved and have been consistent since their onset during military service. The Veteran's service treatment records do not contain documentation of obstructive sleep apnea. However, given his admissible and believable reports of being told about his lapses in breathing and snoring, combined with his personal experience of having persistent daytime somnolence, the Board finds he had sleep apnea symptoms in service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). On the question of whether the Veteran's current obstructive sleep apnea is etiologically related to service, a VA examination was conducted in November 2020, but the examiner failed to complete the section of the report addressing the etiology of the disability. While the claim could be remanded for a medical opinion, the Board finds this is avoidable. The November 2020 VA examiner determined that the onset of the disability was in 1990, and that the Veteran's symptoms have progressed since that time. Similarly, at the November 2017 sleep study, the examiner documented a history of obstructive sleep apnea of over ten years, and that previous C-PAP treatment had not been successful. VA treatment records from 2007 through 2021 clearly indicate ongoing symptoms and treatment related to obstructive sleep apnea dated throughout the years since military discharge. Further, the Veteran is competent to report symptoms of sleep apnea during and since service, and his lay assertions are found credible for the purpose of linking the onset of his sleep apnea to military service. There is no evidence to the contrary and the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board thus finds that the evidence is in relative equipoise in showing that the Veteran's sleep apnea as likely as not had its clinical onset in service. In resolving any reasonable doubt in the Veteran's favor, service connection is warranted. 5. Service connection for a hernia disability is dismissed. During the August 2021 hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for service connection for hernia disability. See Hearing Transcript, p. 2. The undersigned explained that withdrawing the appeal meant that it would be dismissed and would not be decided with the claims remaining on appeal. The Veteran, who was represented by an agent at the hearing, confirmed his understanding of the impact of a dismissal and his desire to proceed with withdrawing the appeal. The record thus demonstrates that the consequences of the withdrawal were fully understood. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Here, the Veteran has withdrawn from appeal service connection for a hernia disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND A TDIU is remanded. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In various correspondence, the Veteran reported that he is unable to work due to his service-connected foot disabilities, and VA examiners have found that the disabilities indeed impact his ability to work. See July 2015 VA Form 21-8940. The claim for a TDIU has thus been added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Appellate adjudication of the TDIU claim must be deferred pending the VA Regional Office's implementation of the Board's award of service connection herein, including the assignment of a disability rating and effective date, and on consideration of any statements made by VA examiners as to the impact of the disability on the Veteran's employability. The matter is REMANDED for the following action: Implement the Board's award of service connection for an obstructive sleep apnea. Thereafter, readjudicate the Veteran's entitlement to a TDIU. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.