Citation Nr: 1745524 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-27 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to higher staged initial ratings for eczema, rated noncompensable prior to December 6, 2016, and 10 percent from December 6, 2016. 2. Entitlement to higher staged initial ratings for low back strain, rated 10 percent prior to December 6, 2016, and 20 percent from December 6, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1994 to October 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2016. A transcript of that hearing is of record. These matters were previously before the Board in October 2016, when they were remanded for further development. The matters now return to the Board for appellate consideration. During the pendency of the appeal, the issue of entitlement to service connection for a left knee disability was granted in a January 2017 rating decision. Thus, the issue is not for appellate consideration. The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) has not been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As this appeal is from the initial rating decision granting service connection, the relevant period on appeal is from July 11, 2011. FINDINGS OF FACT 1. The most probative evidence of record shows that, prior to and from December 6, 2016, the Veteran's eczema, at worst, required no more than intermittent topical corticosteroids. 2. The most probative evidence of record shows that the Veteran's back disability was at worst manifested by forward flexion limited to greater than 60 degrees but less than 85 degrees from the period on appeal prior to December 6, 2016, and to greater than 30 degrees but less than 60 degrees for the period on appeal from December 6, 2016. CONCLUSIONS OF LAW 1. The criteria for a 10 percent initial disability rating, and no higher, prior to December 6, 2016, for eczema, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). 2. The criteria for an initial disability rating in excess of 10 percent from December 6, 2016, for eczema, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016) 3. The criteria for a staged initial disability rating in excess of 10 percent prior to December 6, 2016, and in excess of 20 percent from December 6, 2016, for lumbar strain and IVDS, have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.13, 4.59, 4.71a, Diagnostic Code 5003, 5235-5243 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria- Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. Analysis Eczema The Veteran's eczema is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806 (2008). That code provides a noncompensable evaluation for dermatitis or eczema involving less than 5 percent of the entire body, or less than 5 percent of exposed areas affected, and no more than topical therapy was required during the prior 12-month period. A 10 percent rating is warranted for dermatitis or eczema 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 if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806 (2008). In the alternative, eczema may be rated as disfigurement of the head, face, or neck under DC 7800, or as scars under DC 7801, 7802, 7803, 7804, 7805, depending upon the predominant disability. The rating period for consideration is from July 11, 2011, the effective of the award of service connection for eczema. The record shows that the Veteran was using topical corticosteroids in September 2011. A VA progress note dated in February 2014 noted that clinical evaluation revealed no visible abnormality, including no rash, itching, or change in skin texture, hair or nails. A May 2014 primary care note indicated the Veteran was seen for complaint of having recurrent flareup of his eczema. He stated that it usually starts with multiple itchy pimples on both hands and the right foot. He reported that it usually occurred more with hot weather, and that these episodes were usually self-limited. They usually lasted about 2-3 days. He indicated he felt much better now. The Veteran brought in some cell phone pictures of his hand during the flareup. Then current examination revealed no erythema, and no macular or papular lesions. The Veteran was started on topical steroid cream as needed to be used only on the beginning of his flareups. He was also provided with Vistaril to be used as needed for Itching. An April 2015 progress note indicated his active medications additionally included "HYDROXYZINE PAMOATE 25MG CAP TAKE ONE CAPSULE BY MOUTH EVERY EIGHT HOURS AS NEEDED FOR ITCHING," and "TRIAMCINOLONE ACETONIDE 0.1% CREAM APPLY THIN FILM AS DIRECTED TWICE A.DAY TO AFFECTED AREA(S)." A May 2016 VA progress note indicated the Veteran's active outpatient medications included "MENTHOI/M-SALICYLATE 10-15% TOP CREAM APPLY THIN FILM EXTERNALLY THREE TIMES DAILY" and pending medication included "TRIAMCINOLONE ACETONIDE 0.1% CREAM, TOP APPLY THIN FILM AS DIRECTED TWICE A DAY." The May 2016 clinical plan indicated that the Veteran was to be started back on topical steroids. A VA fee-basis Skin Diseases Disability Benefits Questionairre completed in December 2016 indicated that the Veteran's eczema did not cause scarring or disfigurement of the head, face or neck. It was noted as medical history that the Veteran had had constant to near constant systemic therapy treatment with topical corticosteroids of Triamcinolone Acetone during the past 12 months. Physical examination revealed the Veteran's eczema affected between 5% and less than 20 % of the total body area, and less than 5% of the exposed body area. The Veteran had another VA examination in January 2017, and the examiner stated that his topical corticosteroid usage was for more than six weeks, but not constant. With consideration of the Veteran's VA treatment records and VA examinations, the Board finds that there has been demonstration of the diagnostic criteria for a 10 percent rating, and no higher, under DC 7806, for the rating period prior to, and from December 6, 2016. While clinical reports dated prior to December 6, 2016 do not demonstrate that at least 5% of the total body or exposed body area was affected, it is shown that intermittent systemic therapy, on an "as needed basis," with topical corticosteroids was required for a total duration of less than 6 weeks during a prior 12-month period. Specifically, a May 2014 primary care note indicated that flare-ups usually occurred more with hot weather, and that these episodes were usually self-limited, and lasted about 2-3 days. The topical medication prescribed during this period was noted as specifically for use as needed. There is no indicated that any such period was for more than 2-3 days, or more than a total of 6 weeks during a 12-month period. Although, it was reported as medical history in a December 6, 2016 Skin Diseases Disability Benefits Questionaire that the Veteran had had constant to near constant systemic therapy treatment with topical corticosteroids of Triamcinolone Acetone during the past 12 months, this is contradicted by the then contemporaneous medical treatment records as outlined above, as well as on VA examination in January 2017. As there has been no demonstration that the eczema results in disfigurement of the head, face, or neck, a higher rating is not warranted under DC 7800. Additionally, as there has been no demonstration that any residual scar manifestation is the predominant disability manifestation of eczema, a higher rating is not warranted under DC 7801, 7802, or 7804. As, such, with resolution of any doubt in the Veteran's favor, a 10 percent initial rating is granted for the period prior to December 6, 2016. The preponderance of the evidence is against a finding that an initial rating in excess of 10 percent is warranted for the Veteran's eczema at any time during the rating period on appeal, including for the period from December 6, 2016. Back Disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca, 8 Vet. App. 202; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2016). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5235-5243. Intervertebral disc syndrome (IVDS) is rated under DC 5243 and is to be evaluated under the General Rating Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). The General Rating Formula provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), DC 5293 provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The rating period for consideration is from July 11, 2011, the effective of the award of service connection for the low back disability. During the period on appeal prior to December 6, 2016, the Veteran complained of low back pain multiple times a day, and had a diagnosis of lumbar strain. The Veteran contended that he had difficulty standing for long periods. August 2011 VA examination showed painful flexion to 78 degrees. The Veteran did not have additional functional limitation after repetitive use. The Veteran reported flare-ups four times a day. The Veteran indicated that standing and walking became difficult during flare-ups, and they are alleviated by rest and medication. The record does not show that the Veteran had flexion limited to less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees; or severe muscle spasm or guarding with abnormal gait or abnormal spinal contour. There is no ankylosis, arthritis, or weakness. Thus, the most probative evidence of record shows that the Veteran's back disability was at worst manifested by limited flexion greater than 60 degrees but not greater than 85 degrees. The Board has considered whether the Veteran's back disability resulted in a level of functional loss greater than that already contemplated by the assigned rating during this period. Deluca, 8 Vet. App. at 206. The evidence shows that the Veteran, generally, did not have trouble walking or moving, except during several 30 minute daily periods of pain. As such, the Board finds the evidence does not reflect additional functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating for this period on appeal. Accordingly, entitlement to a rating in excess of 10 percent for a low back strain prior to December 6, 2016 is denied. For the period on appeal from December 6, 2016, the objective range of motion testing indicating that the Veteran's forward flexion was limited to, at most, 40 degrees, when considering the additional functional limitation from flare-ups. The record does not show total range of motion of the lumbar spine less than 120 degrees. At a January 2017 VA examination, the Veteran reported that he could sit for 30 minutes and walk for 20 minutes. The Veteran noted flare-ups lasting 12 to 24 hours, every day. There was no additional functional loss after repetitive use testing. The Veteran noted use of a back brace. During this period, the Veteran was diagnosed with IVDS. The record does not show incapacitating episodes having a total duration of at least 4 weeks but less than six weeks in the last 12 months. While the Veteran's representative contends that the Veteran had numerous periods of incapacitation, the record does not support medically prescribed bedrest. In consideration of the Veterans reported functional loss, the Board finds that the Veteran's functional loss does not reflect functional impairment comparable to that contemplated by the next highest rating criteria, and is adequately considered by his currently assigned rating. Thus, the Board finds that from December 6, 2016, the Veteran's back disability was at worst manifested by limited forward flexion between 30 and 60 degrees. To the extent that the Veteran contends his disability, for the entire period on appeal, is more severe than the assigned rating, the Board notes that the Veteran is considered competent to give evidence about what he observes or experiences. For example, the Veteran is competent to report that he experiences certain symptoms, such as pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that the Veteran is also credible in regard to these statements. However, the Board assigns greater probative value to the findings of the VA examiners and treatment records that were recorded following physical examinations of the Veteran, as the Veteran has not been shown to possess the medical training necessary to evaluate the nature and severity of his back disability, which are complex medical issues involving the internal workings of the body. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37. Further, the Veteran has not been shown to have the requisite knowledge or expertise to be deemed competent to assess his level of functional impairment pursuant to the appropriate schedular DC criteria. In consideration of the above, entitlement to an initial rating in excess of 10 percent for a low back strain prior to, and in excess of 20 percent from, December 6, 2016, is denied. Other considerations Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial disability rating of 10 percent, and no higher, for eczema, prior to December 6, 2016, is granted. Entitlement to an initial disability rating in excess of 10 percent, for eczema, from December 6, 2016, is denied. Entitlement to an initial rating in excess of 10 percent prior to December 6, 2016, and in excess of 20 percent from December 6, 2016, for a low back strain, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs