Citation Nr: 1507327 Decision Date: 02/19/15 Archive Date: 02/26/15 DOCKET NO. 09-19 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome. 3. Entitlement to an initial compensable rating for bilateral foot and bilateral axilla fungal infection, previously characterized as tinea cruris, prior to June 9, 2009, and a rating higher than 10 percent since. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Driever INTRODUCTION The Veteran served in the Army Reserves and National Guard, the latter from December 1999 to April 2000 and from February 2003 to September 2006, including on active duty for training (ACDUTRA) from January to April 2000, from June to October 2003, and from June to July 2004. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran's claims of entitlement to service connection for low back, right knee and skin (tinea cruris) disabilities and assigned 20 percent, 0 percent, and 0 percent ratings for them, respectively. He is disputing those initial evaluations. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The RO also, however, denied his claims of entitlement to service connection for a left knee disability, hernia, and diabetes mellitus. In June 2009 the Veteran began alleging that his service-connected low back disability rendered him unemployable, thereby in turn raising a derivative claim of entitlement to a TDIU since a component - so part and parcel - of his claim for a higher initial rating for his low back disability. See Roberson v. Principi, 251 F.3d 1378 (2001); Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet .App. 447 (2009). The RO since has considered and denied this derivative TDIU claim in the first instance in a February 2011 rating decision. Even more recently, in September 2013, the Veteran testified in support of his claims during a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. During the hearing, the Veteran indicated he was withdrawing his claim of entitlement to service connection for a hernia. See 38 C.F.R. § 20.204 (2014). Consequently, in a decision subsequently issued in February 2014, the Board summarily dismissed the hernia claim, but granted the claim for service connection for diabetes mellitus (later effectuated by the RO in an April 2014 rating decision), and remanded the claims for higher initial evaluations for the low back, right knee and skin disabilities for further development. In a still additional rating decision issued in August 2014, the RO recharacterized the skin disability (tinea cruris) as bilateral foot and bilateral axilla fungal infection and increased the rating for this disability to 10 percent as of June 9, 2009. The Veteran since has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). So this claim now concerns whether he was entitled to an initial compensable rating, meaning an initial rating higher than 0 percent, prior to June 9, 2009, and whether he has been entitled to a rating higher than 10 percent since. Also during the course of this appeal, the Veteran initiated appeals of the RO's December 2009 and July 2010 denials of service connection for cataracts and right eye blurriness, including as due to the service-connected diabetes mellitus, and the assignment of an initial 30 percent evaluation for then service connected major depressive disorder. But after the RO issued statements of the case (SOCs) in response to his notices of disagreement (NODs), he did not complete the steps necessary to perfect his appeal of these claims to the Board by submitting a timely substantive appeal, e.g., a VA Form 9 or equivalent statement. 38 C.F.R. § 20.200. Thus, these claims are not before the Board. VA processed this appeal electronically using Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems. Accordingly, consideration of this appeal must take into account these electronic records. Unfortunately, rather than immediately deciding, the Board is remanding the claims of entitlement to an initial rating higher than 20 percent for the degenerative disc disease of the lumbar spine and for a TDIU since they require further development. The remand of these claims will be to the Agency of Original Jurisdiction (AOJ). However, the Board instead is going ahead and deciding the remaining claims for higher initial ratings for the right knee disability and bilateral foot and bilateral axilla fungal infection. FINDINGS OF FACT 1. The Veteran's right knee disability, partly attributed to degenerative joint disease (i.e., arthritis), has caused painful, limited motion during the course of this appeal. 2. Prior to June 9, 2009, the fungal infection affected his groin and armpits (axillae), bilaterally, the same areas of his body affected during outpatient treatment in 2010 when the 10 percent rating for this fungal infection was in effect. 3. Since June 9, 2009, this fungal infection has affected between 5 and 20 percent of his entire body and necessitated constant or near-constant use of topical treatment. CONCLUSIONS OF LAW 1. The criteria are met for a higher initial rating of 10 percent for the right knee patellofemoral pain syndrome, though no greater rating. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260, 5261 (2014). 2. The criteria also are met for a higher initial rating of 10 percent for the bilateral foot and bilateral axilla fungal infection (previously characterized as tinea cruris), prior to June 9, 2009. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.10, 4.27, 4.118, DCs 7820-7806 (2014). 3. The criteria are not met, however, for a rating higher than 10 percent for this bilateral foot and bilateral axilla fungal infection (previously characterized as tinea cruris), either prior to or since June 9, 2009. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.10, 4.27, 4.118, DCs 7820-7806 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Specifically, VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, also of the portion of the evidence the claimant is to provide versus the portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. As well, VA must assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination and/or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). The Veteran in this case does not assert that VA violated its duty to notify, including during the February 2014 hearing, see Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), that there are any outstanding records that VA should obtain on his behalf, or that he should be afforded another VA examination based on the inadequacy of the earlier examinations he underwent during the course of this appeal. No further notice or assistance is thus required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that claimant has the burden of proof of showing there has been an error in developing his claim, but also beyond that, showing it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless). See also 38 C.F.R. § 20.1102 (2014). Also keep in mind these are initial-rating claims, so arose in the context of the Veteran trying to establish his underlying entitlement to service connection for these disabilities, which since has been granted. VA does not have to provide additional VCAA notice in this circumstance concerning this "downstream" disability rating element of the claims because the initial intended purpose of the notice has been served inasmuch as the claims as they arose in their initial context have been granted, so substantiated. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Rather, according to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claims, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. The Veteran was provided this required SOC, citing the statutes and regulations governing the ratings of these disabilities and containing discussion of the reasons or bases for not assigning higher initial ratings for these disabilities. See 38 U.S.C.A. § 7105(d). See also Goodwin, 22 Vet. App. 128. He therefore has received all required notice concerning these downstream initial-rating claims. In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he submitted or that VA obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to each claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). II. Analysis The Veteran is claiming entitlement to higher initial evaluations for his right knee disability and fungal infection affecting various areas of his skin. According to written statements dated in April 2008 and June 2009, also his October 2010 application for a TDIU and his September 2013 hearing testimony, both disabilities are appreciably worse than is contemplated by their existing ratings. He presently is rated 0-percent disabled because of his right knee, but he suffers from right knee pain daily, also flare-ups of this pain, consequent limited motion, weakness, fatigability, and a lack of coordination. He also claims this knee tends to collapse, so is unstable, leading to falls and near-falls. These symptoms reportedly required the use of a brace at some point to stabilize this knee, and, along with his low back symptoms, hindered his ability to continue working as a truck driver. He distinguishes the symptoms he is experiencing in his right knee from those he is experiencing in his right leg (shooting pains and numbness down to his heels); he believes the latter, instead, are due to his low back disability, which is rated separately. According to his representative, who spoke at the hearing, compensable right knee symptoms have been evident since the Veteran's 2010 VA examination, but the RO continues to rate his right knee as 0-percent disabling. The Veteran testified that the fungal infection affects multiple areas of his body, including his feet, toes, legs and armpits, and does not always respond to topical treatment. It reportedly causes him pain, irritation and itchiness. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. If the evidence is in equipoise, meaning about evenly balanced, all reasonable doubt material to a determination will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45. As regarding the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45); see also Johnson v. Brown, 9 Vet. App. 7 (1996) (provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion). With any form of arthritis, painful motion is an important factor. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable rating under DC 5003 and § 4.59 for painful motion is assignable where arthritis is established by X-ray findings, even if there is no actual limitation of motion of the affected joint. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In such a case, painful motion is considered limited motion even though a particular range of motion is possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). Limitation of motion may be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain, however, must actually affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In other words, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. VA's Office of General Counsel (OGC) has issued precedent opinions pertinent to claims of entitlement to increased ratings for knee disabilities. These opinions hold that a veteran who has X-ray evidence of arthritis and instability of the knee may be evaluated separately under DCs 5003 and 5257, respectively, provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOGCPREC 9-98 (August 14, 1998). Additional disability is shown when a veteran meets the criteria for at least a noncompensable (so 0 percent) evaluation under either DC 5260 or 5261, which require flexion limited to 60 degrees or extension limited to 5 degrees, or when there is painful motion such that it adds to the actual limitation of motion shown under DC 5260 or DC 5261. VAOPGCPREC 9-98 at paragraphs 1, 6. A separate evaluation also may be granted under DC 5003 and 38 C.F.R. § 4.59 when a veteran technically has full range of motion that is inhibited by pain. 9-98 at paragraphs 4, 6; see also Lichtenfels, 1 Vet. App. at 488. In another precedent opinion, VAOPGCPREC 9-2004 (September 17, 2004), OGC held that a veteran who has both limitation of flexion and extension of the same knee must be rated separately under DCs 5260 and 5261, respectively, if a compensable degree of disability as to each is shown. A. Schedular Evaluation 1. Right Knee Disability The RO has assigned the Veteran's right knee disability a noncompensable (0 percent) evaluation under DC 5260. DC 5260 provides that a 0 percent rating is assignable for flexion of the leg limited to 60 degrees. A 10 percent rating is assignable for flexion of the leg limited to 45 degrees. A 20 percent rating is assignable for flexion of the leg limited to 30 degrees. A 30 percent rating is assignable for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also pertinent to this claim are DCs 5003, 5256, 5257 and 5261. DC 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC(s) for the specific joint or joints involved - which, here, are DC 5260 for limitation of knee or leg flexion (cited above) and DC 5261 for limitation of knee or leg extension. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for X-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003. DC 5261 provides that a 0 percent rating is assignable for extension of the knee or leg limited to 5 degrees. A 10 percent rating is assignable for extension of the knee or leg limited to 10 degrees. A 20 percent rating is assignable for extension of the knee or leg limited to 15 degrees. A 30 percent rating is assignable for extension of the knee or leg limited to 20 degrees. A 40 percent rating is assignable for extension of the knee or leg limited to 30 degrees. A 50 percent rating is assignable for extension of the knee or leg limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5257 concerns "other" impairment of the knee, including recurrent subluxation or lateral instability, and provides that a 10 percent rating is assignable for slight consequent disability. A 20 percent rating is assignable for moderate consequent disability. Whereas a 30 percent rating is assignable for severe consequent disability. 38 C.F.R. § 4.71a, DC 5257. DC 5256 provides that a rating of at least 30 percent is assignable for ankylosis of the knee. 38 C.F.R. § 4.71a, DC 5256. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. So, in this case, to be assigned a higher initial evaluation for his right knee disability, the Veteran must show that he has functionally impairing painful or limited motion, such that his flexion is limited to 45 degrees or extension to 10 degrees, or that he has ankylosis. To be assigned a separate evaluation under DC 5257, he must show that he has recurrent subluxation or lateral instability in addition to the impeded motion owing to arthritis. He asserts that he has submitted this required evidence establishing his entitlement to a higher initial evaluation and, indeed, treatment records and VA examination reports substantiate this assertion. Treatment records establish that, as of 2006, he was receiving regular treatment, including prescription pain medication and muscle relaxants, for bilateral knee pain. Initially, on VA examination in March 2007, and despite an in-service diagnosis of right knee arthritis, X-rays did not reveal right knee arthritis or any other abnormalities. In November 2008, however, X-rays showed degenerative joint disease of the right knee, so confirmed there is arthritis in this knee. At the time, the Veteran was using over-the-counter knee braces, but being extremely active, including by playing basketball and running "20Ks"; he requested better, sports-type braces. Doctors considered the request, reviewed the X-rays and voiced hesitation at issuing such braces. However, one eventually issued the braces and the Veteran reportedly utilized them for years, until they began aggravating his service-connected skin disability. During a VA examination in March 2010, a VA examiner confirmed that the Veteran had painful, limited motion, including flexion to 105 degrees (rather than to the normal 140 degrees). The examiner also noted tenderness, swelling and crepitus and indicated that, during flare-ups and on repetitive use, he would expect the Veteran to have a 20-to-25 degree loss of motion, weakness, fatigability and a loss of coordination. These findings warrant the assignment of a 10 percent evaluation for his right knee disability. Even considering the expected 20-to-25 percent additional limitation in motion during flare-ups and on repetitive use, however, an initial evaluation exceeding 10 percent is not assignable because that degree of limitation is still noncompensable under DCs 5260 and 5261. So the 10 percent rating is sufficient to compensate the Veteran for the extent his pain further reduces his range of motion to this greater level in this circumstance. To reiterate, although pain may cause a functional loss, pain itself does not constitute functional loss. See again Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling, so noncompensable, under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. By December 2010, when the Veteran underwent another VA examination, he was still wearing his brace and exhibiting limited range of flexion. Thereafter, he continued to receive less regular right knee treatment, but he remained on pain medication and providers noted that the right knee disability interfered with his mobility. By April 2014, when he underwent his most recent VA examination, he was no longer using a knee brace or seeing an orthopedist. He expressed fewer right knee complaints and the examiner noted fewer right knee symptoms. The examiner did, however, find limited motion, albeit less severe (just a 10-degree loss of flexion), and confirmed pain and tenderness. These symptoms are sufficient to establish continued entitlement to a 10 percent evaluation, though no greater rating. Throughout the entire course of this appeal, including during treatment visits and multiple VA examinations, providers/examiners either failed to note any instability or subluxation or, upon objective testing, ruled it out. So that was despite the Veteran often subjectively having complained of it. Moreover, although he wore braces, which are typically issued for instability, it appears he did so on his own accord or insistence, not instead in response to any actual finding of instability. Accordingly, the Board may not assign a separate evaluation under DC 5257, that is, apart from the rating under DC 5260 on referable from DC 5003. Lastly, because the Veteran continues to have range of motion in his right knee, even accepting that it is less than normal, especially on flexion during flare ups or prolonged or repetitive use, it cannot be said this knee is ankylosed. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. There is no such indication here. 2. Fungal Infection The RO has assigned the Veteran's fungal infection a 0 percent evaluation prior to June 9, 2009, and a higher 10 percent evaluation since, under DC 7820-7806. See 38 C.F.R. § 4.27 (a hyphenated DC is used when a rating under one DC requires use of additional DC to identify basis for rating assigned; additional DC is shown after the hyphen). DC 7820 provides that an infection, including fungal, which is not listed elsewhere, is to be rated as disfigurement of the head, face or neck, scars, or impairment of function. 38 C.F.R. § 4.118, DC 7820. DC 7806 provides that a 0 percent evaluation is assignable for dermatitis with less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the previous 12-month period. A 10 percent evaluation is assignable for dermatitis with 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 evaluation is assignable for dermatitis with 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 less six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. , The Veteran asserts that he has submitted evidence establishing his entitlement to a higher initial evaluation and, again, treatment records substantiate this assertion, but only prior to June 9, 2009, not also since. a. Prior to June 9, 2009 By rating decision dated in August 2014, the RO increased the evaluation assigned the Veteran's fungal infection (then noted to be affecting the feet, legs, axillae and groin) to 10 percent, effective from June 9, 2009, based on a VA examiner's April 2014 finding that the infection was affecting between 5 and 20 percent of the Veteran's entire body. The RO chose this effective date based on treatment records showing that, on June 9, 2009, the Veteran had the same infection affecting the same parts of his body. The Veteran began seeking dermatological treatment in 2009 and, during treatment visits, reported a history of the infection affecting multiple areas of his body since service. During a VA examination in May 2007, two years prior to seeking treatment, the VA examiner recommended such treatment based on evidence of the fungal infection affecting the Veteran's groin and armpits, bilaterally. During a VA examination in December 2010, a VA examiner noted the same infection in the same areas of the Veteran's body and characterized such degree of involvement as less than 5 percent of the Veteran's body. Perhaps due to this finding, the RO did not assign the 10 percent evaluation an earlier effective date to correspond with the May 2007 examination date. However, due to the nature of this condition (waxes and wanes, sometimes secondary to topical treatment and moisture, etc...), the Veteran's reported history of the infection affecting additional areas of his body, and because, during treatment visits in 2010 (when the infection was rated 10-percent disabling), the Veteran presented with the infection affecting the groin and axillae only, the Board finds that it is more appropriate to rate the condition 10-percent disabling during the entire course of this appeal. When a claim involves a skin disorder, it is essential the examination occur during an active rather than inactive phase. In Ardison v. Brown, 6 Vet. App. 405 (1994), the Court held that VA was obligated to evaluate tinea pedis ("Athlete's foot"), so another type of skin condition, while in an active stage of the disease in order to fulfill the duty to assist. However, that said, in Voerth v. West, 13 Vet. App. 117 (1999), the Court clarified that a new examination was warranted in Ardison because active tinea pedis was a condition that would exist for weeks or months. On the other hand, a flare-up lasting only one or two days not only renders a new VA examination impractical, but a "person who experiences a worsened condition only for a few days out of a year simply is less impaired than someone who suffers from the worsened condition for weeks or months." Id., at 123. So the Court has indicated an examination during an active stage of disease is not universally warranted in all situations and circumstances, though it seemingly was in this particular instance. b. Since June 9, 2009 There is no evidence of record, including reports of treatment or VA examinations, indicating that, since June 9, 2009, the Veteran's fungal infection has affected 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas. There also is no evidence of record indicating that it necessitates systemic therapy. Rather, according to the April 2014 VA examiner, it affects between 5 and 20 percent of the Veteran's body and necessitates constant or near-constant topical therapy. B. Extra-schedular Consideration In reviewing these claims for higher initial evaluations, the Board also has considered whether the Veteran is entitled to an even greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule applies unless there are exceptional or unusual factors that render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of whether an extra-schedular evaluation may be assigned is a component of a claim for an increased or higher initial rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular evaluation in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular consideration when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if a schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). Here, with regard to his right knee and skin disabilities, the Veteran has not specifically raised a claim for higher initial evaluations on an extra-schedular basis. Rather, he alleges that his multiple service-connected disabilities, not just those at issue here, collectively interfere with his employability. This, however, will be determined when deciding whether he is entitled to a TDIU. 38 C.F.R. §§ 4.1, 4.14, 4.15. Accordingly, in the meantime referral for consideration of an extra-schedular evaluation, for these two specific service-connected disabilities, is unwarranted. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). C. Conclusion The Rating Schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded different evaluations in the future should either of his disability pictures change. 38 C.F.R. § 4.1. At present, however, the previously-noted evaluations are the most appropriate given the evidence of record. In reaching this conclusion, the Board considered the complete history of these disabilities as well as their clinical manifestations and the effect each has on the Veteran's earning capacity. 38 C.F.R. §§ 4.1, 4.2, 4.41. ORDER A higher 10 percent initial rating is granted for the right knee patellofemoral pain syndrome, subject to the statutes and regulations governing the payment of retroactive VA compensation. A higher 10 percent initial rating also is granted for the bilateral foot and bilateral axilla fungal infection (previously characterized as tinea cruris), prior to June 9, 2009, also subject to the statutes and regulations governing the payment of retroactive VA compensation. But a rating higher than 10 percent for this bilateral foot and bilateral axilla fungal infection (previously characterized as tinea cruris) is denied, both prior to and since June 9, 2009. REMAND The Board sincerely regrets the additional delay that invariably will result from remanding, rather than immediately deciding, the remaining claims for an initial rating higher than 20 percent for the degenerative disc disease of the lumbar spine and a TDIU, but this additional development is necessary to ensure the record is complete so the Veteran is afforded every possible consideration concerning these claims. The RO assisted the Veteran during the course of this appeal by affording him VA compensation examinations, during which examiner addressed the severity of the Veteran's low back disability and his employability. However, the reports of those examinations are inadequate to decide these claims. During the April 2014 VA spine examination, the examiner cited to 2007 and 2010 X-rays and magnetic resonance imaging (MRI) of the Veteran's spine, which showed an increase in degenerative changes and other abnormalities. As well, on neurological testing, the examiner noted a hypoactive right knee and right ankle. The examiner did not conduct further testing or explain the effect or significance of the right knee and ankle abnormalities. Discussion regarding this matter is crucial as the Veteran claims certain symptoms suggestive of neurological involvement, which, pursuant to the Rating Schedule, demands a separate rating. Moreover, in May 2007, March 2010 and December 2010, when the Veteran underwent other VA examinations, two VA examiners diagnosed degenerative disc disease of the spine and one noted muscular spasm, guarding and weakness. During the May 2007 and December 2010 VA examinations, examiners found that the Veteran's low back disability hindered his prior work (presumably as a truck driver), but not sedentary employment. The December 2010 examiner further found however that, although the Veteran was awake and alert during the examination, the narcotics he was taking for his low back disability might impact even sedentary employment. That examiner also considered the effect of the Veteran's right knee and skin disabilities on his employability, but individually, rather than collectively, so along with the other service-connected disabilities. She did not consider the aggregate effect of all of the Veteran's service-connected disabilities on his employability, instead indicating he did not report any employment interference secondary to those other disabilities. Since then, the Veteran has been granted service connection for additional disabilities and his combined disability evaluation is higher. So an updated, more definitive, opinion is needed. Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. Transfer the Veteran's claims file to one of the VA examiners who evaluated him in December 2010 and April 2014 for an updated opinion regarding the severity of his low back disability and his employability in light of his service-connected disabilities. Ask the examiner to follow the instructions below. a. Review all pertinent evidence of record and indicate in writing in the record that the review included this evidence, including a complete copy of this decision and remand. b. Conduct all testing deemed necessary. c. Relying on treatment records and VA examination reports, record the Veteran's history of symptoms associated with his service-connected disabilities, including any resulting from the use of medication needed for treatment or management of those disabilities. d. Offer an opinion regarding the collective functional impact of these service-connected disabilities, including the medication taken for them, on his ability to obtain or sustain employment that would be considered substantially gainful versus just marginal in comparison, when considering his level of education, prior work experience and training, but not his advancing age and disabilities that are not service connected. e. Referring specifically to the April 2014 notation on VA spine examination of hypoactive right ankle and knee reflexes, indicate whether this finding confirms neurological involvement and, if so, describe the severity of it. f. Acknowledging conflicting evidence of record, including reports of VA examinations in May 2007, March 2010, December 2010 and April 2014, indicate whether and to what extent the Veteran has degenerative disc disease of the spine. g. Provide explanatory rationale for the opinions expressed and any conclusions reached, citing the objective medical findings leading to the conclusions. h. If an opinion cannot be expressed without resorting to mere speculation, indicate in the record what evidence could be obtained to aid in providing such an opinion or discuss why a more definitive response cannot be provided. 2. Review the addendum report to ensure it complies with the above instructions. If it does not, return it to the examiner for correction and all necessary additional information. 38 C.F.R. § 4.2. 3. Then readjudicate these remaining claims in light of this and all other additional evidence. If either claim continues to be denied, send the Veteran and his representative a supplemental SOC (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. The Veteran has the right to submit additional evidence and argument concerning these remanded claims. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs