Citation Nr: 0811770 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-38 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial compensable evaluation for a left knee condition. 2. Entitlement to an initial evaluation in excess of 10 percent for a right knee condition. 3. Entitlement to an initial compensable evaluation for bilateral pes planus. 4. Entitlement to an initial compensable evaluation for dyshidrotic eczema. 5. Entitlement to an initial evaluation in excess of 10 percent for a left shoulder condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from May 2003 to March 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The veteran testified before the undersigned at a videoconference hearing in March 2007. A transcript of that hearing is of record. When the case was last before the Board in July 2007, the Board denied entitlement to service connection for a right and left ankle condition, granted a compensable rating for hypertension, and remanded the issues listed above. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. The veteran's left knee disability is manifested by full range of motion, without instability or subluxation. 2. The veteran's right knee disability is manifested by essentially full range of motion, without instability or subluxation. 3. The veteran has mild bilateral pes planus; there is no evidence of painful motion or instability in either foot, no obvious edema, weakness, or tenderness to palpation in either foot, no evidence of abnormal weight bearing, and normal alignment of the Achilles tendon bilaterally. 4. Prior to October 31, 2007, the veteran's eczema was manifested by small patches of dry skin on his right hand and feet which involved less than 5 percent of the total body area or exposed areas. 5. Since October 31, 2007, the veteran's eczema is manifested by patches of dry skin on the lateral aspect of the upper humerus bilaterally and the entire upper back, and which involve more than 5 percent of the whole body or exposed areas, and require systemic treatment and regular topical therapies for control of symptoms. 6. The veteran's left shoulder disability is manifested by forward flexion and abduction limited by pain, with some laxity of ligaments. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.71, Plate II, 4.71a, DCs 5257, 5260, 5261 (2007). 2. The criteria for an initial rating higher than 10 percent for right knee disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.71, Plate II, 4.71a, DCs 5257, 5260, 5261. 3. The criteria are not met for a compensable rating for bilateral pes planus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.71a, DC 5276 (2007). 4. The criteria for a compensable evaluation for eczema are not met prior to October 31, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.118, DC 7806 (2007). 5. The criteria for a 10 percent evaluation for eczema are met from October 31, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, DC 7806 (2007). 6. The criteria for an initial rating higher than 10 percent for left shoulder disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, DC 5203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). An August 2005 VCAA letter informed the veteran of the information and evidence required to establish entitlement to service connection for right and left knee conditions, bilateral pes planus, dyshidrotic eczema, and a left shoulder condition. While this letter did not specifically describe the information and evidence required to grant a compensable evaluation for these disabilities, the Board notes that, in Dinges/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that once service connection is granted the claim is substantiated, and further notice as to the rating or effective date elements is not required. See also VAOPGCPREC 8-2003 (Dec. 22, 2003) (in such circumstances, a Statement of the Case was required in cases involving a "downstream" issue following an initial service connection grant, but 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue). Therefore, as service connection has been established for the above disabilities, and the veteran is seeking higher initial evaluations for those disabilities, further notice regarding the disability rating, including evidence and information required to grant a compensable evaluation, is not required. Id. As this case concerns the propriety of initial evaluations, rather than claimed increases in existing evaluations, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. II. Applicable laws and regulation Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. III. Specific rating criteria pertaining to knees The veteran's left knee disability is currently rated 0 percent disabling and his right knee is rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. See 38 C.F.R. § 4.27. Under DC 5260 [limitation of flexion of the leg], a 0 percent evaluation is warranted for flexion limited to 60 degrees. A 10 percent evaluation is warranted for flexion limited to 45 degrees. A 20 percent evaluation is warranted for flexion limited to 30 degrees and a 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (2007). Under DC 5261 [limitation of extension of the leg], a 0 percent evaluation is warranted for extension limited to 5 degrees. A 10 percent evaluation is warranted for extension limited to 10 degrees. A 20 percent evaluation is warranted for extension limited to 15 degrees. A 30 percent evaluation is warranted for extension limited to 20 degrees. A 40 percent evaluation is warranted for extension limited to 30 degrees and a 50 percent evaluation is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2007). Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2007). Under DC 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability and a 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2007). Under DC 5259, a 10 percent evaluation is assigned in cases of symptomatic removal of semilunar cartilage. Under DC 5258, a 20 percent evaluation is in order for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. A. Analysis Left Knee Upon review of the evidentiary record, the Board finds that the preponderance of the evidence is against the veteran's claim for a compensable rating for left knee condition. Regarding limitation of motion of the veteran's left knee, the October 2005 examination indicated that range of motion of the knee was full, 0 to 140 degrees without pain, while the October 2007 VA examination showed that range of motion was 0 to 125 degrees. Based on this evidence, a compensable rating under DC 5260 or 5261 based on limitation of flexion or extension of the knee is not warranted. The Board notes that DC 5257 is not for application as both the 2005 and 2007 examination reports reflect that the left knee did not exhibit instability. When applying these code sections, consideration must be given to such symptoms as painful motion, functional loss due to pain, weakened movement, excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996); 38 C.F.R. §§ 4.40, 4.45. The Board has considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca would afford the veteran a higher evaluation - based on the extent of his pain and/or painful motion, etc. However, the October 2005 VA examiner stated that there was no evidence of painful motion, weakness, fatigability, incoordination or instability and during periods of flare-ups or at times of repetitive use or fatigability, the veteran may have increased pain but he would not lose any range of motion in the left knee. The October 2007 VA examiner noted that the veteran rarely experienced flare-ups of the left knee. There is also no evidnece of ankylosis (DC 5256) or symptomatic removal of semilunar cartilage (DC 5259). VA's General Counsel has held that, under certain circumstances, a separate disability evaluation may be assigned for arthritis of the knee under DC 5003 in addition to the rating for instability under DC 5257. VAOPGCPREC 9-98 (August 14, 1998) and VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). But since the veteran has no instability, these precedent General Counsel opinions do not apply to the facts of this particular case. Moreover, since the veteran has essentially normal range of motion in his left knee, he also cannot receive separate ratings for limitation of flexion and extension. See VAOGPREC 9-04 (September 17, 2004) (where VA's Office of General Counsel determined that flexion (a retrograde motion) in bending the leg and extension (a forward motion) in straightening the leg, while involving limitation of motion along the same plane, nonetheless serve different functional roles such that they are not duplicative or overlapping, and that separate ratings may be assigned for limitation of knee flexion (DC 5260) and for limitation of knee extension (DC 5261) without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes.) The Board also has considered whether the veteran's rating should be "staged." The record, however, does not support assigning different percentage disability ratings during the relevant period in question because at no time has his disability been more than 0 percent disabling. Fenderson, 12 Vet. App. at 125-26. For these reasons, the claim for an initial compensable rating for residuals of a left knee condition must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, this doctrine is not applicable in the current appeal. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); 38 U.S.C.A. 5107(b); 38 C.F.R. § 4.3. B. Analysis Right Knee Regarding limitation of motion of the veteran's right knee, the October 2005 examination indicated that range of motion of the knee was full, 0 to 140 degrees without pain; while the October 2007 VA examination showed that range of motion was 0 to 125 degrees with pain beginning at 110 degrees and ending at 125 degrees. None of these figures show flexion limited to 30 degrees or less, the requirement for at least a 20 percent rating under DC 5260. Likewise, the figures do not show extension limited to 15 degrees or less, the requirement for at least a 20 percent rating under DC 5261. Indeed, on virtually every occasion when tested, the veteran had completely normal range of motion - or certainly essentially so. The Board notes that DC 5257 is not for application as both the 2005 and 2007 examinations indicated that the right knee did not exhibit instability. There is also no evidnece of ankylosis (DC 5256) or dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint (DC 5258). The Board has considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca would afford the veteran a higher evaluation - based on the extent of his pain and/or painful motion, etc. But the October 2005 VA examiner stated that there was no evidence of painful motion, weakness, fatigability, incoordination or instability and during periods of flare-ups or at times of repetitive use or fatigability, the veteran may have increased pain but he would not lose any range of motion in the right knee. During the October 2007 VA examination, the veteran provided his impression of the extent of effects of flare-ups on limitation of motion and other functional impairment. He noted that he experienced flare-ups of the right knee every other day and when this occurred he would ice his knee and lie down. After two hours he would again be able to walk on his knee. Though the Board sympathizes with the veteran's symptoms during periods of flare-ups, the medical and other evidence of record does not support a higher rating even with consideration of these flare-ups. There is no objective indication of additional functional impairment, such as limitation of motion above and beyond the normal range of motion generally shown, due to these factors. VA's General Counsel has held that, under certain circumstances, a separate disability evaluation may be assigned for arthritis of the knee under DC 5003 in addition to the rating for instability under DC 5257. VAOPGCPREC 9-98 (August 14, 1998) and VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). But since the veteran has no instability, these precedent General Counsel opinions do not apply to the facts of this particular case. Moreover, since the veteran has essentially normal range of motion in his right knee, he also cannot receive separate ratings for limitation of flexion and extension. See VAOGPREC 9-04 (September 17, 2004). The Board also has considered whether the veteran's rating should be "staged." The record, however, does not support assigning different percentage disability ratings during the relevant period in question because at no time has his disability been more than 10 percent disabling. Fenderson, 12 Vet. App. at 125-26. For these reasons, the claim for an initial evaluation in excess of 10 percent for a right knee condition must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, this doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 4.3. IV. Specific rating criteria pertaining to bilateral pes planus The veteran's bilateral pes planus is currently rated 0 percent disabling under 38 C.F.R. § 4.71a, DC 5276. For mild impairment, with symptoms relieved by built-up shoe or arch support, a 0 percent rating is to be assigned. A 10 percent rating is appropriate for moderate pes planus, with the weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, whether bilateral or unilateral. For severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, a 20 percent evaluation is warranted if unilateral and a 30 percent evaluation if bilateral. For pronounced pes planus, with marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, a 30 percent rating is applicable if the impairment is unilateral and 50 percent if bilateral. Analysis Bilateral Pes Planus During the October 2005 VA examination the veteran indicated that he experienced pain in his arches once or twice a month and he rated the pain as a one or two on a scale of one to ten. He used arch supports and inserts in his shoes but he denied the use of any medication to treat his pain. Examination of the feet revealed no edema, tenderness to palpation of the plantar fascia, or pronation. The arches appeared normal and the Achilles alignment was normal bilaterally. During the October 2007 VA examination there was no evidence of painful motion, swelling, instability, or weakness. The plantar surface of both heels was tender to palpation and there was evidence of abnormal weight bearing which was evidenced in the veteran's unusual shoe wear pattern. There was no pain on manipulation. Pes planus was not noted during the examination. Lacking medical evidence that the weight-bearing line of either foot lies over or medial to the great toe, or that there is any current inward bowing of the tendo achillis, pain on manipulation or use of either foot, the requirements for a higher 10 percent rating are not met. Further, the rating schedule indicates that a 0 percent rating is to be assigned when the symptoms are relieved by built-up shoe or arch support. Here, the veteran has indicated during both examinations that upon the use of insoles, his symptoms are relieved and he has denied taking any medication to relieve any discomfort. So the objective clinical findings show the current manifestations of the veteran's bilateral pes planus, including discomfort, are not more than mild and do not meet the criteria of the rating schedule for a compensable rating. The Board has considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca would afford the veteran a higher evaluation - based on the extent of his pain and/or painful motion, etc. In this case, there is no evidence the veteran has any flare-ups of his bilateral pes planus or that the disability produces any additional functional impairment not contemplated by the schedular criteria. Thus, consideration of the DeLuca factors also does not warrant a higher rating for the disability. The Board also has considered whether the veteran's rating should be "staged." The record, however, does not support assigning different percentage disability ratings during the relevant period in question because at no time has his disability been more than 0 percent disabling. Fenderson, 12 Vet. App. at 125-26. For these reasons, the claim for an initial compensable evaluation for bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, this doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 4.3. V. Specific rating criteria pertaining to eczema The veteran's eczema is currently rated 0 percent disabling under 38 C.F.R. § 4.118, DC 7806. Under 38 U.S.C.A. § 4.118, Diagnostic Code 7806, a zero percent evaluation contemplates less than five percent of the entire body or less than five percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent evaluation is warranted for cases with at least five percent, but less than 20 percent of the entire body, or at least five 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 evaluation is assigned in cases of 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. A 60 percent evaluation is warranted in cases of 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. Analysis Eczema After careful review of all the medical evidence of record, the Board finds that a compensable rating is not warranted for the veteran's skin disorder for the period prior to October 31, 2007. On examination in October 2005, the veteran's skin showed three small lesions. One on the dorsal aspect of the right hand, one on the extensor surface of the right foot and one on the extensor surface of the left foot. The examiner indicated that the veteran suffered from dyshidrotic eczema which encompassed less than five percent of his entire body surface and it had no affect on his occupation or activities of daily living. Hence, there was no evidence of eczema with at least five percent, but less than 20 percent of the entire body, or at least five 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. Rather, the evidence prior to October 31, 2007, reflects at most a slightly disabling disorder covering little surface area. The Board notes, however, that beginning October 31, 2007, the medical evidence on file shows that the veteran's disability picture warrants a compensable rating. During the VA examination from that date, the veteran noted that within the past 12-months he has used a topical corticosteroid to treat his eczema. Examination of the veteran's skin showed that greater than 5 percent of the total body area was affected, but less than 20 percent. The veteran had patches of eczema involving the entire lateral aspect of his upper humerus bilaterally and patches of eczema over the entire upper back. Thus, the amount of skin involvement warrants assignment of a compensable, 10 percent evaluation under DC 7806. Moreover, a systemic steroid was required to bring the eczema under control. This use, for a duration of less than six weeks, also justifies the assignment of a 10 percent evaluation under DC 7806 from October 31, 2007, the earliest date on which there is medical evidence of the extent of the involvement. To warrant a higher (30 percent) rating, the skin problems would have to impact 20 to 40 percent of the body or exposed areas, or require systemic therapy for six weeks or more. The veteran's eczema is not shown to approach this degree of severity. Overall, the evidnece supports a 10 percnet evaluation for dyshydrotic eczema, but only for the period beginning on October 31, 2007. This staged rating represents a partial grant but also a denial as to the period prior to October 31, 2007, as the initial zero percent evalatuion remains warranted during that period. 38 U.S.C.A. 5107(b); 38 C.F.R. § 4.3. VI. Specific rating criteria pertaining to left shoulder Preliminarily, the Board notes that, according to an August 2001 service medical history report, the veteran is right- handed. The left shoulder is therefore non-dominant, and the criteria for a minor joint apply. 38 C.F.R. § 4.69. The veteran's left shoulder disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5203. See 38 C.F.R. § 4.27. Under DC 5203, a 10 percent evaluation is warranted for either nonunion of the clavicle or scapula without loose movement, or malunion. A 20 percent evaluation is in order for dislocation of the clavicle or scapula, or nonunion with loose movement. Alternatively, the disability may be rated on impairment of function of a contiguous joint. Other code sections warrant consideration as well. Under DC 5200, a 20 percent evaluation is assigned for favorable ankylosis of scapulohumeral articulation, with abduction to 60 degrees and the ability to reach the mouth and head. A 30 percent evaluation is warranted in cases of intermediate ankylosis of scapulohumeral articulation, between favorable and unfavorable. A 40 percent evaluation is in order in cases of unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from the side. Under DC 5201, a 20 percent evaluation is warranted for limitation of motion of the arm at the shoulder level, or midway between the side and shoulder level. A 30 percent evaluation contemplates limitation of motion of the arm to 25 degrees from the side. DC 5202 concerns other impairment of the humerus. A 20 percent evaluation is assigned in cases of malunion with either moderate or marked deformity; or recurrent dislocation of the humerus at the scapulohumeral joint, with either infrequent episodes and guarding of movement only at the shoulder level, or frequent episodes and guarding of all arm movements. A 40 percent evaluation is assigned in cases of fibrous union of the humerus. A 50 percent evaluation contemplates nonunion of the humerus (false flail joint). An 70 percent evaluation is warranted for loss of the head of the humerus (flail shoulder). Analysis Left Shoulder On examination of the left shoulder during the October 2005 VA examination, there was no evidence of swelling, erythema, deformity, or tenderness to palpitation. Tenderness, however, was noted in the anterior and lateral shoulder with resistance to forward flexion. Range of motion of the left shoulder revealed flexion to 180 degrees, abduction to 150 degrees with pain at 150 degrees, internal rotation to 90 degrees and external rotation to 85 degrees with pan at 85 degrees. The examiner noted the absence of weakness, fatigability, incoordination, and instability and also indicated that during periods of repetitive use, fatigability or flare-ups no additional loss of range of motion was expected. During the October 2007 VA examination range of motion revealed flexion to 180 degrees, abduction to 180 degrees, both external and internal rotation to 60 degrees with pain at 60 degrees. The examiner noted additional limitation of motion on repetitive use due to pain as well as severe crepitance. There was no dislocation of the shoulder, but the shoulder appeared to have signs of some laxity of ligaments, especially when the shoulder was elevated from the neutral position. There is no evidence to suggest dislocation of the clavicle or scapula or nonunion with loose movement, and the 2005 examination revealed that repetitive motion did not appear to increase pain, fatigue, weakness or lack of endurance. The Board has considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca would afford the veteran a higher evaluation - based on the extent of his pain and/or painful motion, etc. In this case, there is no evidence the veteran has any flare-ups of his left shoulder disability or that the disability produces any additional functional impairment not contemplated by the schedular criteria. Thus, consideration of the DeLuca factors also does not warrant a higher rating for the disability. The Board also finds no evidence of favorable ankylosis of scapulohumeral articulation, with abduction to 60 degrees and the ability to reach the mouth and head (30 percent under DC 5200); limitation of motion of the arm at the shoulder level (20 percent under DC 5201); or recurrent dislocation of the humerus with infrequent episodes and guarding of movement only at the shoulder level, or malunion of the humerus with moderate deformity (20 percent under DC 5202). The Board also has considered whether the veteran's rating should be "staged." The record, however, does not support assigning different percentage disability ratings during the relevant period in question because at no time has his disability been more than 10 percent disabling. Fenderson, 12 Vet. App. at 125-26. For these reasons, the claim for an initial evaluation in excess of 10 percent for a left shoulder condition must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, this doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial compensable evaluation for a left knee condition is denied. Entitlement to an initial evaluation in excess of 10 percent for a right knee condition is denied. Entitlement to an initial compensable evaluation for bilateral pes planus is denied. Entitlement to an initial compensable evaluation for dyshidrotic eczema prior to October 31, 2007 is denied. Entitlement to a 10 percent evaluation for dyshidrotic eczema beginning on October 31, 2007 is granted, subject to controlling regulations applicable to the provision of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent for a left shoulder condition is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs