Citation Nr: 1624242 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 10-20 714 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent for a left ankle disability. 2. Entitlement to an initial disability rating higher than 10 percent for chronic herpes progenitalis and condyloma of the scrotum. 3. Entitlement to an initial compensable rating for tinea pedis with history of tinea corporis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to February 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for a left ankle disability (left ankle strain with traumatic arthritis) with a rating of 10 percent effective June 30, 2006; service connection for chronic herpes progenitalis and condyloma of the scrotum with a noncompensable rating effective June 30, 2006; and service connection for tinea pedis with a history of tinea corporis, also with a noncompensable rating, effective June 30, 2006. In a rating decision dated in February 2010, the RO increased the rating for the Veteran's service-connected genital herpes disability to 10 percent effective June 30, 2006. In April 2015, the Veteran testified by videoconference from Jackson, Mississippi, before the undersigned Veterans Law Judge sitting in Washington, D.C. In June 2015, the Board remanded the claims for additional development. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in August 2015. As the evidence is not pertinent to the claims on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c) (2015). Recently, in May 2016, the Veteran appointed a different national veterans service organization (VSO) as his new representative in connection with a new claim. Because the request to change representation was more than 90 days after the case was certified to the Board in connection with the present appeal, and because no motion for good cause has been submitted, the Board finds that the original VSO remains the representative for the claims decided herein. The new change in representation is therefore referred to the RO. See 38 C.F.R. § 20.1304(a). FINDINGS OF FACT 1. The Veteran's left ankle disability has been productive of pain, stiffness, and less than full dorsi- and plantar flexion throughout the appeal period; but it has not been productive of marked limitation of motion or ankylosis. 2. From November 3, 2011, the Veteran's genital herpes has required the use of Hydrocortisone (a topical corticosteroid) on a constant/near-constant basis. Prior to that time, the disability did not comprise 20 percent or more of the entire body or 20 percent or more of exposed areas, or require the use of systemic therapy. 3. The Veteran's bilateral tinea pedis affects less than five percent of the total body area and no exposed areas, and requires no more than topical, non-systemic, non-immunosuppressive therapy; and, although treated during service, there is no post-service lay or medical evidence of tinea corporis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for a left ankle disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271 (2015). 2. The criteria for an initial disability rating of 60 percent for chronic herpes progenitalis and condyloma of the scrotum have been met effective November 3, 2011, but no earlier. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7899-7806 (2015). 3. The criteria for an initial compensable rating for tinea pedis with history of tinea corporis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7813 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). The appeal arises from a disagreement with the initially assigned disability ratings after service connection was granted for these three claims. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private medical records are in the file. More recent treatment records were obtained pursuant to the Board's June 2015 remand. In addition, the Veteran was afforded multiple VA examinations with regard to his claims, including pursuant to the Board's remand. The Board has reviewed the ensuing reports and opinions, and finds that they are adequate because the examiners conducted a personal examination of the Veteran and considered the Veteran's subjective complaints; reviewed the claims file and discussed the Veteran's medical history; and explained how the evidence supported their opinions. Thus, VA's duty to assist has been met. II. Merits Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 2014). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2015). 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 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A. Left Ankle Legal Criteria The Veteran's left ankle disability has been evaluated under Diagnostic Code 5010-5271 throughout the appeal period. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5010 provides for the evaluation of arthritis due to trauma and substantiated by x-ray findings on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 et seq.). See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle; and a 20 percent rating is assigned for marked limitation of motion. Normal range of motion of the ankle is dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45. 38 C.F.R. § 4.71, Plate II (2015). According to VA's Adjudication Procedure Manual, moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VBA Manual M21-1, III.iv.4.A.3.k. (2015). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Facts The Veteran has complained of left ankle pain and stiffness throughout the appeal period. At the Board hearing, he stated that he has continuous pain in the left ankle with limited painful motion and swelling. On VA examination in February 2008, he complained of pain in the left ankle about 40 percent of the time, and of stiffness in the mornings on awakening. He reported that he used no assistive device, except for an occasional Ace wrap and elastic bandage, and averred that he performed all of his activities of daily living, including work, without assistance; and added that he worked as an Accountant. The examiner noted that the Veteran's gait was normal. Range of motion testing found left ankle dorsiflexion from zero to zero degrees and plantar flexion from zero to 44 degrees; and left ankle dorsiflexion to "-4 degrees" and plantar flexion from "-4 to 40 degrees" after repetitive motion. The examiner added that there was no evidence of abnormal weightbearing; no edema or instability; no pain with manipulation of the ankle or foot; and no evidence of painful motion, weakness, or localized tenderness; and he concluded that the Veteran had "very slight limitation of standing and walking due to his left ankle pathology." On VA examination in June 2011, the Veteran complained of daily pain and stiffness in the left ankle; worse in the mornings and during periods of cold weather. He reported that he wore full length inserts in his shoes, and said that he worked full time as a service representative. The examiner noted that the Veteran was ambulatory with a very slight limp on the left. Physical examination found no swelling of the left ankle and alignment of the foot was normal. Range of motion testing found zero to 10 degrees of dorsiflexion and zero to 40 degrees of plantar flexion; with subjective complaints of pain across the anterior aspect of the ankle joint at the end point of motion, greater in plantar flexion than in dorsiflexion. There was no additional limitation of motion after repetitive motion, and no swelling or medial or lateral tenderness, but there was tenderness across the anterior joint line. On VA ankle examination in August 2015, the Veteran complained of mild pain and stiffness on a daily basis, and of flare-ups of increased pain and swelling after running or walking more than a mile. Physical examination of the left ankle elicited mild to moderate anterior ankle joint pain at the distal aspect of the medial malleolus. Range of motion testing found zero to 15 degrees of dorsiflexion and zero to 40 degrees of plantar flexion; with no additional loss of function or range of motion after three repetitions. There was full (5/5) ankle strength; and no instability or ankylosis. The examiner added that apart from jobs requiring running or walking miles at a time, the Veteran's left ankle disability posed "no significant limitations" on his ability to work. Analysis As for a rating higher than 10 percent under Diagnostic Code 5271, the Veteran has complained of pain and stiffness, particularly on arising in the mornings, throughout the appeal period; however, there has been almost full plantar flexion (at least zero to 40 degrees) and no objective evidence of laxity, swelling, inflammation, bony abnormality, or erythema during the appeal period. This level of plantar flexion limitation does not more nearly equate to a finding of marked limitation of motion as moderate limitation of motion is shown when there is 30 degrees and marked is much more limited to 10 degrees. See VBA Manual M21-1, III.iv.4.A.3.k. Similarly, the two most recent VA examinations show that the Veteran's dorsiflexion does not approximate marked limitation of motion as it is limited to 10 and 15 degrees, which is contemplated by moderate limitation of motion, as opposed to less than 5 degrees for marked. See VBA Manual M21-1, III.iv.4.A.3.k. While the earlier VA examination appeared to indicate no motion ability for dorsiflexion, the Board does not find that measurement persuasive as the examiner found only "very slight" early traumatic arthritis and "very slight" limitation of standing and walking due to the left ankle pathology. A measurement of zero degrees dorsiflexion is not in accord with the remainder of the examination report, the severity of the Veteran's symptoms, or the subsequent VA examination reports, which did show that there was dorsiflexion motion and only to the moderate level. Moreover, even with consideration of painful motion and other factors, the Board does not find that marked limitation of motion is shown. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. The VA examiners either found that there was no additional limitation of motion on repetitive motion or that finding such would be resorting to mere speculation. The Board finds this evidence persuasive and that there is not sufficient evidence to make a finding that marked limitation of motion of the left ankle is approximated. The Board accordingly finds that the criteria for an initial rating in excess of 10 percent are not met at any time during the appeal period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board further finds that a rating higher than 10 percent under some alternative diagnostic criteria is not warranted, since the left ankle, although productive of less than full dorsiflexion and plantar flexion, has not been clinically diagnosed as ankylosed at any time during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. There are no other potentially applicable diagnostic criteria that provide for a rating higher than 20 percent. B. Herpes Legal Criteria The Veteran's chronic herpes progenitalis and condyloma of the scrotum (claimed as skin rash) disability has been rated analogously under the eczema provisions of Diagnostic Code 7899-7806 throughout the appeal period. 38 C.F.R. § 4.118 (2015). Under Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, 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. A 30 percent rating is warranted when there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. Facts During his April 2015 Board hearing, the Veteran testified that he was using/taking valacyclovir for his genital herpes, which is a pill, and also cortisone, which is a topical cream. VA and private medical records confirm that he has been prescribed and has used these medications. See, e.g., April 2009 private medical record, noting that the Veteran had been taking Valtrex for his genital herpes for the past 34 years. See also December 2012 VA examination report, noting that the Veteran was "being placed on chronic suppressive therapy with valacyclovir"; and August 2015 VA examination report, noting that the Veteran was taking Valacyclovir cap 500mg once daily, on a constant/near constant basis. VA medical records also show that the Veteran has been prescribed and has used Hydrocortisone for his genital herpes, which was first prescribed in November of 2011 (November 3, 2011). A December 2012 VA examination characterized the cortisone use as a topical corticosteroid with constant/near-constant use. The VA examination reports of February 2008, December 2012 and August 2015 show that the genital herpes covers a small area of non-exposed skin. Additionally, none of the examiners characterized the Valacyclovir/Valtrex or Hydrocortisone as "systemic therapy such as corticosteroids or other immunosuppressive drugs." Analysis First, a higher initial rating is not warranted for area affected as 20 to 40 percent of the entire body as affected is not shown. The evidence shows that a small area of the body is affected and none of the exposed area for this disability. Next, a higher rating is not warranted for Valacyclovir/Valtrex use. The VA examiners did not characterize this medication as systemic therapy such as corticosteroids or other immunosuppressive drugs. Although the medication is through an oral pill, based on this evidence, it is not systemic therapy, or like or similar to corticosteroids or other immunosuppressive drugs. See Warren v. McDonald, No.13-3161 (U. S. Vet. App. May 10, 2016) (holding that Diagnostic Code 7806 does not only account for systemic therapy that involves the use of corticosteroids or other immunosuppressant drugs). This issue turns on whether the use of Hydrocortisone is included as systemic therapy such as corticosteroids or other immunosuppressive drugs. Historically, it has been VA's policy to exclude such from the definition in applying the rating criteria in the Rating Schedule. See VBA Manual, M21-1, III.iv.4.J.3.f. (2015) ("Medications that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered systemic for VA purposes."). Recently, the United States Court of Appeals for Veterans Claims (Court) held that that "systemic therapy" as used in Diagnostic Code 7806 includes the use of corticosteroids without any limitation to such use being oral or parenteral as opposed to topical. See Johnson v. McDonald, 27 Vet. App. 497 (2016). While this case has been appealed to the United States Court of Appeals for the Federal Circuit, it is presently binding case law on the Board. Thus, based on Johnson, the Veteran's constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs for control in the form of a topical corticosteroid, the Board finds that the criteria for the highest schedular rating of 60 percent have been met under Diagnostic Code 7806. As the evidence shows that such treatment began on November 3, 2011, the 60 percent rating is effective form that date. Prior to November 3, 2011, the 10 percent rating remains in effect as the preponderance of the evidence shows that the constant or near-constant systemic therapy was not required for that portion of the rating period. C. Tinea Pedis Under Diagnostic Code 7813, dermatophytosis (including tinea pedis and tinea corporis) is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805); or as dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Of these three, based on the evidence, the predominant disability for this Veteran's tinea pedis and tinea corporis is similar to dermatitis, which is evaluated under Diagnostic Code 7806 with the same criteria as detailed in the genital herpes section above. Although the Veteran was apparently treated for skin rash variously involving the legs, arms, neck, back, and left face during service (see, e.g., service treatment records dated in July 1978, advising of rash of unknown etiology for the past six months), there is no post-service lay or medical evidence of tinea corporis; but post-service medical records do show treatment for tinea pedis (see, e.g., VA podiatry clinic records dated in January 2005). However, as shown in the VA treatment records and examination reports, the Veteran's tinea pedis involves less than 5 percent of the entire body and less than 5 percent of exposed areas; and has required no more than topical (Lamisil) therapy by anti-fungal medicine. Furthermore, the Veteran is already compensated under Diagnostic Code 7806 for the genital herpes disability as described above. Thus, the criteria for a separate compensable rating for the Veteran's service-connected tinea pedis with history of tinea corporis are therefore not met and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. D. Extraschedular Consideration As for an extraschedular rating, the threshold factor is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service- connected disability is inadequate. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2015) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule and the assigned schedular evaluation is adequate; and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the assigned schedular criteria contemplate the severity and symptomatology of the Veteran's disabilities addressed above. For the left ankle disability, including his complaints of pain and morning stiffness, and his less than full range of motion, the rating criteria contemplate this symptomatology as a broad canvas of symptoms is set forth in the rating schedule for musculoskeletal disabilities. Likewise, rating criteria contemplate the symptomatology of the Veteran's skin disabilities, including affected area, and the type of treatment and treatment frequency required. As the Veteran's disability picture is contemplated by the rating criteria for these three disabilities, the Rating Schedule is adequate and referral for extraschedular consideration is not warranted. ORDER An initial disability rating higher than 10 percent for a left ankle disability is denied. Effective November 3, 2011, but no earlier, a disability rating of 60 percent for chronic herpes progenitalis and condyloma of the scrotum, is granted, subject to the laws and regulations governing the payment of monetary awards. An initial compensable rating for tinea pedis with history of tinea corporis is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs