Citation Nr: 1539075 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 11-24 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee chondromalacia and degenerative arthritis. 2. Entitlement to a rating in excess of 10 percent for tinea pedis. 3. Entitlement to a compensable rating for circumcision residuals. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to November 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The RO in Montgomery, Alabama, currently has original jurisdiction over the Veteran's claims. The Board remanded the Veteran's claims in December 2014 and June 2015. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in August 2014. Unfortunately, due to problems with the recording equipment, VA was unable to produce a transcript of the hearing. Correspondence was sent to the Veteran in October 2014 inquiring whether he desired a new Board hearing in conjunction with this appeal. In a statement received the following month, the Veteran reported that he did not want another hearing and requested the Board consider his claim based on the evidence of record. The issue of entitlement to special monthly compensation for the loss of a creative organ has been raised by the record in the January 2015 male reproductive health examination. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Left knee chondromalacia and degenerative arthritis has been manifested by pain, limitation of extension to 0 degrees, and limitation of flexion to, at worst, 90 degrees. 2. For the entire appeal period, the Veteran's circumcision residuals have manifest with a painful scar. 3. The Veteran's tinea pedis has, at times, affected at least 5 percent, but less than 20 percent of his entire body or exposed areas, and he has not used systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during a 12-month period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia and degenerative arthritis are not met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, DC 5260 (2014). 2. The criteria for a 10 percent rating, but no higher, for residuals of a circumcision are met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (2014). 3. The criteria for a rating in excess of 10 percent for tinea pedis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.21, 4.118, Diagnostic Codes 7806 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO sent letters to the Veteran in June 2010 and January 2011, prior to the initial adjudication of his claims, giving him proper notice in satisfaction of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notices informed the Veteran of the evidentiary requirements necessary to substantiate an increased rating claim, the division of responsibility between the Veteran and VA for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all pertinent, identified medical records have been obtained and considered. Specifically, treatment records from VA and records from the Social Security Administration have been obtained, and there no indication that there are any outstanding pertinent records. The Veteran was afforded VA examinations in September 2010 and July 2015 for his claims. The Board notes that in the Veteran's April 2015 post-remand brief, his representative asserted that the tinea pedis and knee examinations were inadequate due to previously unacknowledged flare-ups. However, flare ups are discussed at both knee examinations, and the assertion of tinea pedis flare-ups is unsupported by the Veteran's voluminous amount of medical records. Rather, the examinations properly determined the current severity of his disabilities. The January 2015 examinations were also in substantial compliance with the Board's December 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the disability benefit questionnaires (DBQ) for scars/disfigurement, skin disease, and male reproductive system conditions stated that the Veteran's hard copy paper c-file had not been reviewed, this appears to be a mis-statement because the Veteran's record is completely electronic. See January 2015 Scars/Disfigurement DBQ. In any event, the scars/disfigurement, skin disease, and male reproductive system conditions DBQs all indicate that the Veteran's military and VA treatment records have been reviewed, which are the pertinent documents in this appeal. Inasmuch as these records are stored in the Veteran's electronic claims file, there is no positive indication that there has not been substantial compliance with the Board's earlier remand directives for updated examinations with claims file review. In addition, neither the Veteran nor his representative have alleged any non-compliance or prejudice in this regard. The Board's June 2015 remand directed that a supplemental statement of the case (SSOC) be sent to the Veteran. This was accomplished by the Appeals Management Center in July 2015, when a SSOC was sent to the Veteran at his last known address of record, with a copy to his representative. While the Veteran has apparently refused delivery of the SSOC, VA's obligation has been fulfilled by the mailing of the SSOC to the correct address for the Veteran, and his representative's specific acknowledgment of receipt of the same. Finally, neither the Veteran nor his representative assert that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board thus finds that he is not prejudiced and the Board can adjudicate the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the VCAA requirements. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Left knee disability The Veteran's knee disability is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260, which addresses limitation of flexion. However, the knee joints are subject to evaluation under several different Codes, where the signs and symptoms contemplated by each are separate and distinct. See generally VAOPGCPREC 23-97, VAOPGCREC 9-98, and VAOPGCPREC 9-04; 38 C.F.R. § 4.14. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71, Plate II. Under DC 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Id. Further, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). At his September 2010 examination, the Veteran reported that his knee aches constantly. He stated that flare-ups are caused by damp weather, walking more than 3 or 4 blocks, standing longer than 30 minutes, and helping out with chores. There was no subluxation. He stated that he has to stop and rest his knee on a daily basis, and that his knee has buckled twice. He has full left knee extension, and flexion to 115 degrees on three repetitions. There was no loss of motion on repetitive testing. As the Veteran stated that he was in a flare-up, and there was no loss of motion on repetitive testing, the examiner could not state if there is a loss of motion or function during a flare up without resorting to speculation. At the Veteran's January 2015 examination, he reported that his knee disability creates the functional loss of being unable to stand or walk for more than 10 minutes. Flexion was measured 0 to 100 degrees, and extension 100 to 0 degrees. Pain was noted on the examination and caused functional loss on flexion. There was evidence of pain on weight bearing, with tenderness around the patella. The Veteran was able to perform repetitive use testing, with no additional functional loss or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use. The examination supported the Veteran's statements describing functional loss during flare-ups. Additional contributing factors of disability included disturbance of locomotion and interference with standing. There was no history or recurrent subluxation or lateral instability. There was no joint instability, recurrent patellar dislocation, shin splints, or meniscus conditions, or other impairments. Diagnostic testing found no arthritis or evidence of crepitus. The Board has also considered the Veteran's VA treatment records. A May 2010 physical therapy record includes the Veteran's report that his left knee gives out with walking every day, and that he has clicking inside his knee. The Veteran also reported that his knee swells up with exercise. Flexion was measured as 0 to 110 degrees. More recently, the Veteran gave somewhere conflicting reports at two different appointments held on December 12, 2014. At an orthopedic consultation, his knee had 0 to 90 degrees of active motion. There was no pain anywhere to palpitation, but he exhibited pain in the front of each knee due to a patellofemoral type discomfort. At a physical therapy consultation conducted that same day, he reported constant pain that was an 8 on a scale of 10. In a September 2011 statement, the Veteran stated that his knee was getting so painful that he purchased a cane to relieve pain when he walks. As noted above, to receive a 20 percent rating under DC 5260, limitation of flexion of the leg must be limited to 30 degrees. To receive a compensable rating for loss of extension under DC 5261, extension must be limited to 10 degrees. As outlined above, even when considering the DeLuca factors, the requirements for an increased rating under DC 5260 and/or a separate rating under DC 5261 have not been met, as even when considering these factors the Veteran is still able to achieve full extension and flexion to 90 degrees. In addition to a rating based upon range of motion, DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The Board notes that the terms "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The records show that the Veteran uses assistive devices. The December 2012 orthopedic consultation, for example, noted that the Veteran uses a knee brace. The Veteran also reported using a cane at his January 2015 VA examination. The Board notes that the Veteran is certainly competent to report experiencing symptoms such as knee instability, and the Veteran has reported his knee giving out at varying frequencies. However, physical examinations performed by medical professionals during both VA examinations provides affirmative evidence that there is no left knee instability, and the Board finds that these examination reports have more probative on the matter. Therefore, the Board finds that the preponderance of the competent medical evidence weighs against a finding that the Veteran has left knee instability, and the Veteran has not met the criteria for a separate rating for subluxation or lateral instability under DC 5257. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the ratings assigned herein under any alternate code. See Schafrath, 1 Vet. App. at 593. The Board has considered whether the Veteran is entitled to an increased rating for arthritis, as a September 2010 VA examination noted that a November 2009 x-ray showed degenerative changes (although no arthritis was found in the January 2015 VA examination). However, inasmuch as he is already receiving a 10 percent rating under DC 5260 for painful motion, rating the Veteran under DC 5003 would not avail the Veteran, as that DC instructs to rate based on loss of motion. See 38 C.F.R. § 4.71a, DC 5003. The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, the symptoms discussed by the Veteran, such as pain on motion, and impaired ranges of motion and locomotion, are contemplated by the rating criteria. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37 . In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Here, the evidence does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Circumcision residuals The Veteran's residuals of circumcision are currently non-compensable under DC 7805, for scars, other (including linear scars) and other effects of scars evaluated under DCs 7800-7802 and 7804. DC 7804 provides for a 10 percent rating for one or two scars that are unstable or painful. At his September 2010 examination, the Veteran reported prickly type pain around the base of the glans of his penis that last 2 minutes and happens 3 or 4 times per day. At his January 2015 examination, the scar was described as painful during the Veteran's erections, and there was mild tenderness at the tip of the scar upon examination. Accordingly, the record reflects that the Veteran is entitled to a 10 percent rating under DC 7804 for the entire appeal period. Because his scar does not affect the head, face or neck, is linear, and does not have an area of 144 square inches or greater, he is not entitled to a higher rating under DCs 7800-7802. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the ratings assigned herein under any alternate code. See Schafrath, 1 Vet. App. at 593. Specifically, the Board has considered whether the Veteran in entitled to special monthly compensation due to loss of a creative organ. However, the September 2010 examination stated that the scar does not interfere with coitus, and there was no indication of any such interference in the January 2015 examination, in which the examiner specifically stated that the Veteran's erectile dysfunction was not due to his scar. While the Veteran complained that he has a sharp pain during an erection, he did not state that this prevented him from completing coital relations. The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, the symptom discussed by the Veteran, a painful scar, is specifically contemplated by the rating criteria; the evidence does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, supra. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Tinea Pedis The Veteran has been assigned a 10 percent rating for tinea pedis under 38 C.F.R. § 4.118, DC 7806. Under DC 7806, a noncompensable rating is warranted for less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent rating is for application for at least 5 percent, but less than 20 percent, of the entire body or 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 for 20 to 40 percent of the entire body or exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. The maximum schedular rating of 60 percent is warranted for more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. The Board finds that the Veteran is not entitled to an increased 30 percent rating under DC 7806. Specifically, no evidence of active infection was found at the Veteran's September 2010 VA skin examination. At his January 2015 VA examination, the examiner found that less of 5 percent of the total body area of the skin was affected, none of which was an exposed area. It was noted that he had been treated with the topical medication Terbinafine HCL 1% on a constant or near constant basis over the past twelve months. However, this is not a corticosteroid or other immunosuppressive drug. The Board has considered the Veteran's treatment records. Specifically, the Board notes a VA dermatology record from November 12, 2014. That record found the Veteran's feet skin dry, his nails dystrophic, and his skin trunk and extremities generally dry but with no active dermatitis. The Veteran declined systemic therapy because he had tried it at least three times in the past. This record does not entitle him to an increased rating, as it does not reflect that 20 to 40 percent of the entire body or exposed areas are affected. Moreover, the offered systemic therapy was not required, as it was declined by the Veteran, and there is no indication that such treatment would have been required for a total duration of 6 weeks or more. The Board has also considered a June 22, 2010, dermatology record. At that appointment, the veteran reported that he has foot fungus, and that he thought that it spread up to his body. However, upon examination, his skin was normal/unremarkable with the exception of well moisturized skin, no scaling of the feet, and few skin colored pedunculated papules in bilateral axillae. While the Veteran also wrote in September 2010 that the folliculitis of his feet is getting unbearable, this statement is not sufficient to entitle the Veteran to a 30 percent rating as it does not meet the requirements of DC 7806. In making this determination, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the ratings assigned herein under any alternate code. See Schafrath, 1 Vet. App. at 593. Under DC 7820, infections of the skin not listed elsewhere may be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801 through 7805) or dermatitis or eczema (DC 7806) depending upon the predominant disability. Here, the Veteran is rated under DC 7806. The effected part of the Veteran's body is his feet, not his head, face or neck. Moreover, the VA examinations all show that he does not have any scars related to his tinea pedis. Thus, DCs 7800 through 7805 do not apply. The Board has also considered whether higher ratings are warranted under DCs 7825, 7826 or 7827 for urticaria, primary cutaneous vasculitis or erythema multiforme respectively. Under each of these codes, a 30 percent rating is not warranted unless the disability requires intermittent systemic immunosuppressive therapy. However, records show that the Veteran's tinea pedis has been treated with topical cream, and as discussed above, he declined systemic treatment. Additionally, the Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, the symptoms discussed by the Veteran, namely a foot fungus affecting less than 20 percent of exposed areas of his body and treated with topical medication, is specifically contemplated by the rating criteria; the evidence does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, supra. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Finally, a claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, no TDIU claim is inferred, as the condition alleged to cause unemployability (PTSD) is rated 100 percent disabling. 38 C.F.R. § 4.14; Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). ORDER A rating in excess of 10 percent for left knee chondromalacia and degenerative arthritis is denied. An increased rating of 10 percent, but no higher, for circumcision residuals is granted for the entire appeal period. A rating in excess of 10 percent for tinea pedis is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs