BVA9506521 DOCKET NO. 93-06 461 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for intractable plantar keratoma and hyperkeratotic tyloma, both feet, currently rated 30 percent disabling. 2. Entitlement to an extension of a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence beyond February 29, 1992, following surgery in January 1992. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from March 1982 to July 1985. This matter comes before the Board following a June 1992 decision by the aforementioned regional office (RO) in which a temporary total rating under 38 C.F.R. § 4.30 (1994) was granted from January 6, 1992 to March 1, 1992 when a 30 percent rating was assigned. The veteran expressed his disagreement with that decision in correspondence received at the RO in July 1992. A statement of the case was issued in September 1992, and a substantive appeal was received in December 1992. A supplemental statement of the case was issued in August 1994, after which the case was forwarded to the Board. In addition to the foregoing, the record shows that in correspondence from the veteran dated in July 1992, he requested an increased rating for his service connected chronic sinusitis and allergic rhinitis. It appears that in a September 1992 rating action, the RO denied an increased rating for the veteran's sinusitis and rhinitis, but the record does not reflect that the veteran was informed of this action. In the substantive appeal submitted in connection with the current appeal, the veteran again discussed his disability related to sinusitis, indicating his desire to pursue an increased rating for that disorder. That issue has not been developed on appeal and is not inextricably intertwined with the issues on appeal. Therefore, it is not properly before the Board at this time, but in view of the veteran's statements, that matter is returned to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran requests that the temporary total rating pursuant to 38 C.F.R. § 4.30 be extended until August 1992, when he started college. He argues that no one released him for employment, and he was only able to bear weight without a cane or crutches as of that time. He also maintains that an increased rating is warranted because he has considerable pain when walking, his toes do not straighten, and he experiences toe cramps and progressive pain in his ankles. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased rating for the veteran's bilateral foot disorder, and against the claim for entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence beyond February 29, 1992, following surgery in January 1992. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's bilateral foot disorder is not productive of marked varus deformity, marked contraction of plantar fascia with dropped forefoot, or all toes hammer toes. 3. The veteran's bilateral foot disorder does not present an exceptional or unusual disability picture not contemplated by the rating schedule. 4. The veteran's January 1992 left foot surgery did not require convalescence after February 29, 1992. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for intractable plantar keratoma and hyperkeratotic tyloma, both feet have not been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 4.1, 4.2, 4.10, 4.20, Diagnostic Code 5299-5278 (1994). 2. The criteria for an extension of a temporary total rating beyond February 29, 1992 following surgery in January 1992 have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded in that they are plausible. In addition, the Board concludes that all relevant facts have been properly developed. The veteran has been afforded two VA examinations in connection with his claims and he has not indicated that there are additional probative records that could be obtained. Accordingly, no further development is necessary to satisfy the requirement to assist the veteran under the provisions of 38 U.S.C.A. § 5107. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In addition, the VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. These regulations include, but are not limited to 38 C.F.R. § § 4.1 and 4.2. Also, 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners should furnish, in addition to the etiological, anatomical, pathological , laboratory and prognostic data required for ordinary medical classification, a full description of the effects of the disability upon the person's ordinary activity. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). A review of the record reveals that by a rating action dated in June 1991, the veteran was awarded service connection for intractable plantar keratoma and hyperkeratotic tyloma, both feet. This action was taken following a review of the veteran's service medical records that revealed the veteran was treated for recurrent and painful plantar warts involving both feet. A VA examination conducted in May 1991, revealed numerous plantar tylomas on both feet which the examiner noted are often mistaken for plantar warts. The veteran, who was working as a motor coach operator, complained that his feet, ankles and knees hurt and he was diagnosed to have: "1. intractable plantar keratoma (IPK) submetatarsal II right foot & submetatarsal I & III left foot. 2. Hyperkeratotic - pressure related tyloma submetatarsal I & V right foot and submetatarsal V left foot". A custom made orthotic for each foot, together with regular foot care at least three times per year was recommended. The examiner also indicated that surgery may be necessary if the orthotic did not prove satisfactory. The veteran was assigned a 30 percent disability evaluation in a June 1991 rating action which granted service connection. VA outpatient medical records dated in August 1991, show the veteran had received foot orthotics, however, painful plantar tylomas about the second metatarsal head due to plantar flexed bones were still present. VA outpatient records dated in September 1991 showed that orthotic adjustment was advised, although the plantar tylomas of both feet were apparently reduced. In October 1991, the veteran reported foot cramping under the second metatarsal and there was plantar tyloma at the submetatarsal second and submetatarsal first in the left foot causing pain during the day. It was also observed that the third metatarsal bone had dropped. In November 1991, severe plantar tyloma submetatarsal second and third was noted, and it was indicated that surgery was required to relieve the symptoms. VA records dated in December 1991, show that surgery was scheduled for January 1992. A VA Medical Center final summary dated in January 1992, shows that the veteran was hospitalized from January 6, 1992 to January 8, 1992, when he underwent an extensor tenotomy, second and third digits, and v-osteotomies, second and third digits, left foot. In this summary it was recorded that over time, the second and third metatarsal bone dropped considerably, thereby forming severely painful plantar tyloma on the ball of the left foot, which caused an antalgic gait and the need to use a cane. To relieve the painful plantar tyloma and flexible hammer toe deformities, the veteran underwent the aforementioned surgery. It was noted there were no complications before, during or after the surgery, and the veteran was to have follow-up as an outpatient for dressing changes. In the mean time, he was to remain non-weight bearing on the left foot and ambulate with crutches. The prognosis for the relief of symptoms was good. VA outpatient records dated January 14, 1992, show that the surgery was considered to be healing nicely, and the veteran was advised to return in one week for suture removal. Records dated January 21, 1992, show that the veteran had no complaints, and the sutures were removed. He was advised to return in 4 weeks for x-rays. VA outpatient records dated February 27, 1992, show that there was satisfactory healing of the v-osteotomy, and the veteran was advised to return only as necessary. VA outpatient records dated March 10, 1992, show that the veteran was still using a cane, but he was described as "doing nicely now, wearing orthotics..." The veteran requested that similar surgery be performed on the right foot. The next relevant outpatient treatment record is dated in May 1992. This record shows that the veteran complained of painful feet, and that he walked with a cane. Subsequent podiatry clinic records dated in June 1992, show that the veteran complained that he received some relief following the January 1992 surgery, but that he still experienced bilateral foot pain. It was noted that he was using a cane for ambulating. Physical inspection at that time, revealed intractable plantar keratoma submetatarsal first and 2/3 on the left foot and submetatarsal third on the right foot. There were also tylomata at the submetatarsal first right foot, 5th metatarsal head bilaterally and sub 5th metatarsal base bilaterally. There was slight hammering of the second and third toes of the left foot, and pain on plantar flexion of the second and third digits of the left foot. The diagnostic assessment included intractable plantar keratomas and painful tylomata secondary to slight cavus foot type. The examiner opined that there was minimal relief from the previous foot surgery, but thought the veteran would benefit most from continual conservative care. New orthotics for better control of the foot to relieve pressure on the metatarsal heads was recommended. VA outpatient records dated in July 1992 show that the veteran complained of painful calluses on both feet, which he described as getting progressively worse. He stated the pain shoots up his leg, and that he gets a cramping feeling between his second and third toes of the right foot. The veteran indicated that he had developed calluses on the lateral side of his feet because he tries to walk on the side of his feet to guard against putting pressure on the balls of his feet. The veteran also indicated that he felt the January 1992 surgery only "helped a little", and that he did not believe the orthotics was helping much. Examination revealed pain upon palpation between the second and third digits bilaterally, and the veteran's feet were injected with steroids. The diagnostic assessment was neuroma, and flexible hammertoe 2 - 5 bilaterally. VA outpatient records dated later that month show the veteran related that his foot pain returned only 35 to 40 minutes following the injection to his feet during the previous visit. He also complained of ankle and knee pain. Examination revealed hammertoe syndrome 2 -4 bilaterally; ankle equinus bilaterally and multiple calluses bilateral metatarsal plantar of heads. Subsequent outpatient records, also dated in July 1992, show that the veteran's neurovascular status remained intact bilaterally. However, he complained of ankle, knee and hip pain, and there was pain with palpation of the prominent plantar metatarsal heads on toes 1 - 5 bilaterally. There was also painful plantar lesions together with flexibly contracted 2 - 5 digits bilaterally, and flexibly reducible high arched feet. The veteran's shoes were noted to exhibit excessive lateral wear. In August 1992, the veteran underwent an examination of the feet for VA purposes. The report of this examination revealed that the veteran complained of pain in several places. On the right foot, the veteran complained of pain of a pressure keratosis beneath the second metatarsal head weight bearing surface, and beneath the first metatarsal head weight bearing surface. He also complained of pain along the lateral base of the fifth metatarsal bones of both feet, as well as secondary pain in the ankles and legs. Pain in the left foot started in the ball of the foot about the area of the third metatarsal head weight bearing surface, and radiated proximal into the longitudinal arch and into the leg. While walking on the lateral aspects of the feet to guard against these symptoms, the veteran indicated he developed cramping, as well as heel and ankle pain. It was noted that a previous orthotic did not provide much relief, and that a new type was being constructed. The veteran indicated that palliative trimming of the pressure keratoses from the balls of the feet provide 1 - 2 days of relief. Examination revealed a mild residual metatarsus abductus foot type with bilateral prominence of the base of the lateral aspect of the fifth metatarsal bones. There was some mild hyperkeratotic build up on the bases of these bones bilaterally, lateral aspects, and mild keratotic build up beneath the third metatarsal head weight bearing surface of the left foot. There was also mild palpable, underlying subcutaneous tissue atrophy. The scar from the incision on the dorsal aspect of the second intermetatarsal space of the left foot demonstrated post inflammatory hyperpigmentation, but otherwise was supple and well healed. Palpable tenderness was elicited on the plantar aspect of the third metatarsal head weight bearing surface of the left foot, and the second metatarsal head weight bearing surface of the right foot. However, the veteran did not withdraw from aggressive examination, and he did not demonstrate facial grimace. The veteran did identify proximal pathway of sharp pain radiating into the longitudinal arch when palpating the callus regions of either foot, but the examiner indicated that the veteran's "suggestion of exquisite and constant pain impairing his quality of life and his job search may hint at secondary gain." The examiner's assessment was, 1. Residual metatarsus abductus with pressure irritation of the bases of the fifth metatarsal bones bilaterally. 2. Possible nerve entrapment of a branch of the medial plantar nerve associated with previous treatments for the pressure keratoses in the balls of both feet which would require further evaluation with nerve conduction velocity and electromyography. 3. It is my personal opinion that this patient exhibits pain out of proportion to the clinical findings, suggestive of a factitious component possibly with excessive emotional or psychologic fixation on this aspect of his life which could warrant further psychologic or psychiatric evaluation for definite conclusions. Nerve conduction studies conducted shortly after this examination were interpreted as revealing normal findings. Following the August 1992 VA examination, there are no records of any further outpatient treatment. However, the veteran was examined again for VA purposes in June 1994. The report of this examination reveals that the veteran reported that since the January 1992 surgery on his foot, the plantar callus of the left foot has resolved but that the lesser metatarsals on the left foot feel as if they are about to break with ambulatory activities. However, some symptomatic improvement was reported with the use of orthotics. Examination revealed an underlying bilateral metatarsus adductus foot type. Calluses were present beneath the right 5th metatarsal base, right 5th metatarsal head, right 2nd metatarsal head, and right 1st metatarsal head, and also on the left side beneath the 1st and 5th metatarsal heads. There was a well healed dorsal incision over the 2nd and 3rd metatarsal region in a longitudinal orientation on the left foot and there was tenderness to palpation about the 2nd, 3rd, and 4th metatarsal shafts of the left foot, which however, was considered to be possibly out of proportion. There was also tenderness to palpation about the 2nd, 3rd and 4th metatarsophalangeal joint lines. The diagnoses were as follows: 1. Underlying congenital metatarsus adductus which undoubtedly was contributory to the initial presence of hyperkeratotic lesions. 2. Stress reaction, lesser metatarsals 2 - 4, left foot, vs factitious complaint. 3. Tender lesser metatarsophalangeal joints 2 - 4, either related to scar tissue from surgery with synovitis from overuse or factitious complaint. 4. Residual hyperkeratotic lesions as described above but resolved surgical lesion, left foot. The veteran's service connected foot disorder is not specifically listed in the Schedule for Rating Disabilities, set forth in pertinent regulation. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The RO has rated the veteran's disability analogous to acquired claw foot, which is appropriate given the functions affected, the anatomical localization of the disability and the veteran's symptomatology. Pursuant to 38 C.F.R. Diagnostic Code 5278, acquired bilateral claw foot is assigned a 30 percent rating with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity is rated 50 percent disabling, the highest rating under this code. The record shows that the veteran's bilateral foot disorder is productive of pain and as such, has required the veteran to alter his gait, thereby producing excessive lateral wear on his shoes as well as calluses on that part of his feet. However, the VA physician who conducted the examinations in 1992 and 1994 indicated that there was some question as to the genuine character of these complaints. Significantly, he noted the veteran did not withdraw from aggressive examination. Moreover, the absence of any treatment records dated after 1992 , further suggests that the pain about which the veteran had complained has somewhat subsided. In addition, the record does not show that all of the veteran's toes are hammer toes, that there is a marked contraction of plantar fascia with dropped forefoot or that there is marked varus deformity. In view of this, the Board finds that the disability picture more nearly approximates the criteria required for the veteran's current rating. In reaching this conclusion, the Board has considered the provisions of 38 C.F.R. § 3.321 as it relates to the assignment of disability evaluations on an extra schedular basis. Under this regulation, in exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). However, the findings in this case do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In this regard, it is observed that the veteran's bilateral foot disorder has not required any hospitalization since the 3 day period in January 1992. Moreover, while the veteran may not have been employed since the January 1992 surgery, he apparently began attending school full time in August 1992. Under these circumstances, the Board finds that the impairment resulting from the veteran's bilateral foot disorder is adequately reflected by the rating currently assigned, and the provisions of 38 C.F.R. § 3.321 are not for application. Temporary Total Rating Extension A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment to the service connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches(regular weight- bearing prohibited; (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1),(2),or (3) and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under § 4.30 (a)(2) or (3). As set forth above, the veteran underwent an extensor tenotomy, second and third digits and v-osteotomies, second and third digits, left foot in January 1992, to relieve painful plantar tyloma and flexible hammer toe deformities. No complications were noted before, during or after the surgery, and there is no evidence showing the presence of severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, the application of a cast or the necessity for house confinement. However, the veteran was instructed to remain non- weight bearing on the left foot, and he was provided crutches for ambulating. In addition, while records dated on January 21, 1992, show that the sutures were removed, the veteran was nevertheless directed to return to the clinic in 4 weeks, or approximately the last week of February 1992, at which time he was instructed to return only as necessary. Thus, the evidence establishes, and the RO has awarded under the provisions of 38 C.F.R § 4.30(a), entitlement to a temporary total rating from the date of hospital admission, continuing for a period of one month following such hospital discharge. In this case, that is from January 6, 1992 to March 1, 1992. The veteran has contended that he should be entitled to an extension of that period of a temporary total rating until August 1992, because no one specifically released him for employment, and he had only been able to walk without a cane or crutches since then. However, the record does not show that anyone specifically prohibited him from employment, so it does not seem unusual that there is no specific authorization to return to employment. In addition, VA outpatient records dated on February 27, 1992 show that the surgical site was healing satisfactorily, and no follow-up appointments were scheduled. The veteran was instructed to return to the clinic only as necessary. As it happened, the veteran did seek additional care only 10 days later, but the notes on that record of treatment reveal that the veteran was "doing nicely". In addition, it was observed he was using a cane, rather than crutches, indicating he could bear weight on both feet. It is also significant that while an appointment was set up for the following month, the veteran failed to appear for that appointment, and he was discharged from that clinic. Subsequently dated outpatient records dated in May, June and July 1992, show the veteran complained of foot pain, and that he used a cane to assist in ambulating. However, these complaints were not specifically related by any treating physician to the veteran's surgery, and it is not shown that the veteran was at any time unable to bear weight on the left foot. In view of the February 27, 1992 outpatient record which shows that no follow -up appointments were scheduled to treat or evaluate the January 1992 surgery, the veteran's obvious ability to bear weight on the affected foot by March 1992, and the absence of any attribution of the veteran's subsequent complaints to the surgery, the Board finds that the preponderance of the evidence is against the claim for an extension of a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence beyond February 29, 1992, following surgery in January 1992. ORDER An increased rating for intractable plantar keratoma and hyperkeratotic tyloma, both feet is denied. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence beyond February 29, 1992, following surgery in January 1992, is denied.. E. M. KRENZER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.