Citation Nr: 1753711 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-20 349 ) 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 dermatitis prior to January 11, 2016 and 30 percent thereafter. 2. Entitlement to an initial rating in excess of 20 percent for a low back condition. 3. Entitlement to an initial compensable rating prior to April 3, 2017 for right lower extremity radiculopathy and in excess of 10 percent thereafter. 4. Entitlement to an initial compensable rating prior to April 3, 2017 for left lower extremity radiculopathy and in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's brother ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to November 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from the August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a September 2016 videohearing. A transcript of the hearing is of record. In February 2017, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matter of an initial compensable rating for irritable bowel syndrome has not been certified to the Board. Thus, the matter is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). FINDINGS OF FACT 1. The Veteran's dermatitis is manifested by itching and has been consistently been found to affect less than 41 percent of the entire body and exposed areas; the skin condition requires topical therapy but not systemic therapy or other immunosuppressive drugs. 2. The Veteran's low back condition is manifested by pain and functional impairment with forward flexion to at worst, greater than 30 degrees; there is no ankylosis or physician prescribed bedrest. 3. The Veteran's right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis. 4. The Veteran's left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt, the criteria for a 30 percent rating, but no more, throughout the appeal period for dermatitis have been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). 2. The criteria for a rating in excess of 20 percent for the Veteran's low back condition have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 3. Resolving any reasonable doubt, the criteria for an initial 10 percent rating, but no more, throughout the appeal period for right lower extremity radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 4. Resolving any reasonable doubt, the criteria for an initial 10 percent rating, but no more, throughout the appeal period for left lower extremity radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Dermatitis The Veteran asserts entitlement to a rating in excess of 10 percent for his dermatitis prior to January 11, 2016 and 30 percent thereafter, which is rated under Diagnostic Code (DC) 7806. By way of history, the Veteran filed an increased rating claim for his dermatitis which was denied in the August 2009 RO rating decision from which the current appeal arises. During the course of the appeal, in a May 2016 RO rating decision, the Veteran's condition was increased to 30 percent, effective January 11, 2016. Under DC 7806, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy was required during the past 12-month period. A 10 percent rating will be assigned where 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; 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 where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; 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. VA treatment records throughout the appeal period reflect ongoing topical treatment of the Veteran's dermatitis in affected areas. Topical medications include clotrimazole 1% (cream), lactic acid 12% (lotion) and triamcinolone acetonide .1% (ointment). The Veteran was afforded a VA skin examination in January 2009. The Veteran reported problems with dry skin, itching of the legs, chest and back, particularly in warm weather. The examiner reported that the total body area exposed was greater than 5 percent but less than 20 percent. Exposed areas (head, face, neck, hands) were not affected. There was mild dry skin observed at the lower extremities. He was occasionally treated with topical medications, over-the-counter corticosteroid cream, greater than six weeks during the previous year. On January 2016 VA dermatitis examination, the Veteran reported continued symptoms of itching in his anterior chest and back. The condition was worse with too cold or hot temperatures. He was treated with topical lactic acid lotion for dry skin on a constant/near constant basis over the prior year. The total body area exposed was greater than 20 percent but less than 41 percent. Exposed areas (face, neck, hands) were not affected. Dry skin was noted over the bilateral lower extremities below the knee and anterior/posterior abdomen and chest. The skin condition did not cause scarring or disfigurement of the Veteran's head, face or neck. There was no impact to his ability to work. See January 2016 VA spine examination (Veteran's reports of skin symptoms). The Veteran and his brother testified during the September 2016 Board hearing. Essentially, the Veteran explained that prior examinations were not conducted during skin flare-ups and did not accurately reflect the severity of the condition. Dermatitis affected not only his bilateral lower extremities but also his shoulders, chest and head. He shaved his head to reduce itching and to allow him to apply ointment. The condition worsened in certain hot or cold temperatures, and this was observed by his brother. At the time of the last examination, there was no weather condition impacting his skin. In light of the Veteran's contentions, in the February 2016 Board remand, the AOJ was instructed to obtain an updated VA skin examination, if possible, during a flare-up. On April 2017 VA dermatitis examination, the Veteran reported "chronic itching and rash all over the body." Again, he reported symptoms were worse in cold and hot weather. The total body area and exposed area (face, neck, and hands) was greater than 20 percent but less than 41 percent. Dermatitis was described as a fine, micropapular rash on the chest, upper arms, thighs and scalp. The skin condition did not cause scarring or disfigurement of the head, face or neck. The Veteran reported use of a topical cream twice daily to affected area (clotrimazole 1%) and the examiner detailed that this was for 6 weeks or more, but not on a constant basis over the prior year. He would not be able to work in extreme heat or cold. Resolving any reasonable doubt in the Veteran's favor, the Board finds that a rating of 30 percent is warranted for the entire appeal period, but no more. In this regard, the Board observes that the severity of the dermatitis varied somewhat during the appeal period, as symptoms warranting a lesser rating were shown in his January 2009 VA examination. However, the Veteran provided competent testimony that his condition increased with exposure to certain temperatures. Thus, the condition will be rated to approximate the condition at its worst severity shown. At worst, the condition has shown to impact the Veteran's scalp, shoulder/arms, chest/back and lower extremities. The condition affected greater than 20 percent but less than 41 percent of total body area and exposed area (face, neck, hands), as shown during the April 2017 VA examination. Additionally, at no time has the record shown that the Veteran's dermatitis requires the use of constant or near constant systemic therapy during a 12-month period. See Johnson v. Shulkin, No. 16-2044 (Fed Cir. July 14, 2017). Further, the medical evidence of record has consistently noted that the Veteran's dermatitis did not result in any scarring or disfigurement. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his skin symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran's symptomatology, including his complaints of itching, is contemplated by the criteria under which his disability is currently rated. Further, his assertions such as those of flare-ups with certain temperatures have been considered in assigning the above, 30 percent rating, for the period prior to July 11, 2016. However, to the extent that the Veteran has argued that his skin condition impacts greater than 40 percent of his entire body or total exposed area, the lay assertions are considered less persuasive than the more specific, objective medical findings recorded on numerous occasions and assessed by medical professionals in VA examinations from January 2009, January 2016 or April 2017 which, as indicated above, do not support the assignment of an disability rating in excess of 30 percent at any time during the appeal period. Low back The Veteran asserts entitlement to an initial rating in excess of 20 percent for his low back condition. By way of history, service connection was granted for the Veteran's low back condition in the August 2009 RO rating decision from which the current appeal arises. During the course of the appeal, in the April 2017 RO rating decision, the Veteran was granted separate ratings for his bilateral lower extremity radiculopathy, each evaluated as 10 percent, effective April 3, 2017. Thereafter, the Veteran submitted a notice of disagreement with the assigned ratings. However, as those awards were granted pursuant to Note (1) of the diagnostic criteria for the spine, the Board finds that they are part and parcel of the claim on appeal. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding 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 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 disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DC 5235-5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine, including the lumbar spine, is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, DC5243, Note (2). Under the Formula for Rating IVDS based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Nevertheless, the medical evidence of record is absent any evidence of physician prescribed bedrest. As such, the Formula for Rating IVDS based on incapacitating episodes is not raised by the record, and it does not provide an adequate basis for an increased disability rating. Although prior to the appeal period, VA and private records from March and April 2007 show complaints of tingling and numbness in his bilateral legs to his knees with prolonged standing. A private March 2007 magnetic resonance imaging (MRI) found mild degenerative disc bulges from L2-S1 and mild bilateral foraminal stenosis at each level from L2-S2 without neural compression. See VA treatment records dated July 28, 2008. Throughout the course of his appeal, the Veteran's statements, VA and private treatment records indicate that he has experienced low back symptoms of pain, stiffness, and loss of range of motion. The Veteran has described functional limitations such as trouble lifting and with prolonged sitting or standing. See e.g., VA Form 9 dated July 2011. The record reflects that the Veteran has been long employed with the government throughout the appeal period. Initially, he was an asphalt inspector and in 2013 he moved laterally to radiation safety in 2013. See e.g., July 2016 VA urinary tract examination and Virtual VA CAPRI records dated January 16, 2014 (January 2014 VA mental examination). On VA examination in July 2009, the Veteran reported chronic back pain and stiffness. The chronic pain was unremitting, deep, throbbing, moderate and constant with no radiation of pain. The Veteran denied a history of numbness, paresthesias and leg or foot weakness. The Veteran denied flare-ups. He used a brace. The Veteran was able to walk more than 1/4 mile but less than 1 mile. The Veteran's forward flexion was measured to 41 degrees, with pain on active range of motion. There was no change in range of motion upon repetitive use testing. The lower extremities had a normal motor examination and muscle tone with no muscle atrophy. Sensory and reflex testing was, except for some reflex reduction for knee jerk at 1+ (hypoactive) with normal being 2+. The Veteran reported trouble performing his job, which required him to repeatedly lift 65 pound bags. The effect to usual occupation was noted as significant with problems lifting, carrying and pain. He lost two weeks in the prior year due to his back condition. In a VA physical therapy consultation record from September 2013, the Veteran complained of radiating low back pain into his bilateral lower extremities. The medical professional noted forward flexion to 18 degrees, but indicated that the range of motion testing limitations appeared effort based. See Virtual VA CAPRI records dated February 16, 2014, pg. 29 of 226. Several October 2015 VA records document complaints of numbness and radiating low back pain. See records labeled VA examination, pg. 20 of 35 and CAPRI records dated November 2, 2015, pg. 56-57. On VA spine examination in January 2016, the Veteran reported that he could not lift anything. He had occasional use of a back brace and constant use of a cane. The Veteran denied flare-ups. Forward flexion was measured to 40 degrees with no change with repetitive use testing. There was no evidence of pain on weight bearing or localized tenderness. The impact to his ability to work was to avoid weight lifting. There were no neurologic abnormalities or findings related to the condition. The bilateral lower extremities had normal muscle strength and there was no muscle atrophy. Sensory and reflex testing was normal. There was no radiculopathy. There were no other neurologic abnormalities such as bowel or bladder problems/pathologic reflexes. Due to complaints of worsening low back pain radiating into his hips during treatment in January 2016, a February 2016 MRI was conducted. The study found moderately advanced degenerative changes throughout the lumbar spine resulting in multilevel neural foramina narrowing most severe at L4-L5 and L5-S1 level with compression of exiting roots. See Virtual VA CAPRI records dated September 1, 2016, pg. 28, 163 of 349. On VA examination in April 2017, the Veteran reported symptoms of increased pain, fatigue and weakness with prolonged sitting, sitting, and walking. Pain was chronic, severe, sharp, and burned and radiated into his right hip and leg. He reported using a back brace and walking using a cane regularly. The Veteran denied flare-ups. Forward flexion was measured to 60 degrees with pain exhibited and no change with repetitive use testing. There was no evidence of pain on weight bearing. There was mild tenderness with palpation over the lumbosacral area. The bilateral lower extremities had normal muscle strength with no muscle atrophy. Reflexes of the lower extremities were normal. Sensory testing was decreased bilaterally for the thigh/knee, lower leg/ankle and foot/toes but normal in the right anterior thigh. There were moderate symptoms bilaterally of intermittent pain (usually dull) and paresthesias and/or dysesthesias. There were no symptoms of numbness or constant pain (may be excruciating at times). The examiner found that the Veteran had radiculopathy of the bilateral lower extremities that was mild and impacted the femoral and sciatic nerve. There were no other neurologic abnormalities or findings related to the condition. The February 2016 MRI was included in the report. The examiner indicated that the Veteran would not be able to do work that required prolonged standing, walking, bending, lifting or carrying over 20 pounds but sedentary work may be appropriate. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his low back condition. The Veteran's forward flexion has consistently exceeded 30 degrees, as shown in all three VA examinations from July 2009, January 2016 and April 2017. The Board notes the 2013 forward flexion measurement of 18 degrees; however, this disparity in range of motion testing was explained to be due to the Veteran's poor effort. Thus, it is not considered probative evidence. Thus, the criteria more nearly approximates a 20 percent rating, but no more. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation for the period considered. The lay and medical evidence demonstrates that the currently assigned evaluation of 20 percent is appropriate for the Veteran's low back condition. Associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate DC. 68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003). Initially, the Board observes that the Veteran has symptoms of voiding dysfunction which have been attributed to benign prostatic hypertrophy (BPH). See July 2016 VA urinary tract examination. Additionally, medical evidence indicates that the Veteran has erectile dysfunction. However, no VA examiner or treating medical professional has attributed the condition to the Veteran's low back. Of note, service connection was denied for BPH and erectile dysfunction (claimed as service connection for diabetes mellitus with erectile dysfunction) in prior RO rating decisions dated February 2014, December 2015 and September 2016. There is no bowel impairment shown. The Veteran's radiculopathies of the bilateral lower extremities are rated under DC 8520 for paralysis of the sciatic nerve. Under DC 8520, in pertinent part, mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Resolving any reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent for mild incomplete paralysis of the bilateral lower extremities, but no more, is warranted throughout the entire appeal period. For the period prior to July 11, 2016 and throughout the appeal, there have been subjective complaints of occasional to intermittent radiating pain and/or numbness. Objective findings prior to July 11, 2016 include a reduced knee jerk reflex bilaterally in the July 2009 VA examination and the February 2016 lumbar MRI with multilevel neural foramina narrowing most severe at L4-L5 and L5-S1 level with compression of exiting roots highlighted in the April 2017 VA examination. At no time during the appeal period has the evidence indicated that symptoms have reflected more than a mild incomplete paralysis of the sciatic or femoral nerve. The lay and medical evidence reflects that the Veteran has not complained of more than intermittent symptoms in any of his three VA examinations or treatment records. The Board acknowledges that "moderate symptoms" of intermittent pain and paresthesias and/or dysesthesias were indicated in the April 2017 VA examination. However, symptoms of constant radicular symptoms or numbness were not shown and the examiner clearly identified the overall condition was mild in severity. Notably, during his prior July 2009and January 2016 VA examinations no radiculopathy was shown and the Veteran denied symptoms of radiating pain. Pertinently, objective findings in all three VA examinations have shown full muscle strength, no muscle atrophy and largely normal reflexes. Sensory examinations were normal in the July 2009 and January 2016 VA examinations and decreased, but not absent in the April 2017 VA examination. As such, entitlement to a rating in excess of 10 percent for bilateral lower extremity radiculopathy is not shown. The Board has considered whether higher ratings are warranted for bilateral lower extremity radiculopathy under any other diagnostic codes pertaining to the peripheral nerves, such as DC 8526 for paralysis of the femoral nerve, but there are no findings of impairment to warrant ratings in excess of 10 percent. Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. However, the record reflects that he is still employed. As such, Rice is inapplicable to this case and need not be further addressed. ORDER Entitlement to a rating of 30 percent, but no more, throughout the appeal period for the Veteran's dermatitis is granted. Entitlement to a rating of 20 percent, but no more, throughout the appeal period for the Veteran's low back condition is granted. Entitlement to a rating of 10 percent, but no more, throughout the appeal period for the Veteran's right lower extremity radiculopathy is granted. Entitlement to a rating of 10 percent, but no more, throughout the appeal period for the Veteran's right lower extremity radiculopathy is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs