Citation Nr: 1803477 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-10 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for myofascial neck syndrome prior to June 16, 2015. 2. Entitlement to a disability evaluation in excess of 20 percent for cervical degenerative disc disease/degenerative joint disease (DDD/DJD) with Intervertebral Disc Syndrome (IVDS) (previously rated as myofascial neck syndrome) from June 16, 2015. 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity associated with cervical DDD/DJS with IVDS. 4. Entitlement to an effective date earlier than September 28, 2016 for the grant of service connection for radiculopathy of right upper extremity associated with cervical DDD/DJS with IVDS. 5. Entitlement to an initial disability evaluation in excess of 10 percent for metatarsalgia right foot. 6. Entitlement to an initial disability evaluation in excess of 20 percent for right ankle strain. 7. Entitlement to an initial compensable disability evaluation for ventral hernia. 8. Entitlement to a compensable disability evaluation for tinea versicolor. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from September 1981 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012, July 2013 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The December 2012 rating decision granted service connection for myofascial neck syndrome and assigned a 10 percent evaluation effective November 12, 2010, granted service connection for metatarsalgia of the right foot and assigned a 10 percent evaluation effective November 12, 2010, and granted service connection for a ventral hernia and assigned a noncompensable evaluation effective November 12, 2010. The July 2013 rating decision granted service connection for a right ankle strain and granted a 10 percent evaluation effective December 27, 2012. The February 2014 rating decision, in pertinent part, granted service connection for tinea versicolor and assigned a noncompensable evaluation effective August 21, 2013. During the pendency of the appeal, a May 2015 rating decision granted a 20 percent evaluation for right ankle strain effective December 27, 2012, the date for which service connection was established. In addition, a March 2017 rating decision increased the Veteran's evaluation for DDD/DJS with IVDS (previously rated as myofascial neck syndrome) to 20 percent effective June 16, 2015. However, because these increased evaluations do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim for an increased rating for a right ankle strain remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). The March 2017 rating decision also assigned a separate 20 percent rating effective September 28, 2016 for radiculopathy of the right upper extremity associated with DDD/DJS with IVDS. As this grant is an element of the rating for his neck disability, the issue is deemed part of his current appeal. See Buie v. Shinseki, 24 Vet. App. 242, 250-1 (242) (noting VA's duty to adjudicate claims so as to maximize benefits). In his March 2014 substantive appeal, which perfected three issues before the Board, the Veteran requested a Travel Board hearing before a Veterans Law Judge. In a June 2015 substantive appeal, submitted for the remaining issues on appeal, the Veteran did not request a Board hearing. VA correspondence in August 2015 and September 2015 notified the Veteran that a Board hearing had been scheduled for September 25, 2015. However, the Veteran did not report for the hearing and no good cause was shown for his absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C. § 20 .704 (d) (2017). In a February 2016 the Board remanded the claim for additional development. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In a November 2016 rating decision, the RO denied the Veteran's claim for low back and bilateral shoulder disabilities. The Veteran filed a timely notice of disagreement (NOD) in January 2017. The RO has not issued an SOC but acknowledged the Veteran's NOD in a January 2017 letter. Thus, a remand is not warranted as the issues are in review status. See 38 C.F.R. §§ 19.26, 19.29; Manlincon v. West, 12 Vet. App. 238 (1999) (finding that where there has been no issuance of an SOC, the appropriate action by the Board is to remand the claim for issuance of an SOC rather than merely refer the claim for such action.) FINDINGS OF FACT 1. Prior June 16, 2015, the Veteran's myofascial neck syndrome manifested in no worse than forward flexion limited to, at worse, 40 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is not shown. 2. From June 16, 2015, the Veteran's cervical DDD/DJS with IVDS manifested in, at worse, muscle spasms; ankylosis of the cervical spine is not shown. 3. For the entire appeal period, the Veteran's radiculopathy of the right upper extremity associated with cervical DDD/DJS with IVDS manifested in, at worse, mild incomplete paralysis; moderate incomplete paralysis not shown. 4. The earliest effective date for the establishment of service connection for radiculopathy of the right upper extremity is August 5, 2015, the date radiculopathy due to his service-connected cervical DDD/DJS with IVDS was shown. 5. For the entire appeal period, the Veteran's metatarsalgia of the right foot symptoms more nearly approximates the criteria contemplated by a 10 percent rating. 6. For the entire appeal period, the Veteran's right ankle disability manifested in marked limited motion; ankylosis of the ankle is not shown. 7. For the entire appeal period, the Veteran's ventral hernia more nearly approximates the criteria for a noncompensable rating. 8. For the entire appeal period, the Veteran's tinea versicolor affected less than five percent of the Veteran's total body and less than five percent of the exposed areas with no more than topical therapy required during the previous 12 month period. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to June 16, 2015 for myofascial neck syndrome are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5299-5237 (2017). 2. The criteria for a disability rating in excess of 20 percent from June 16, 2015 for cervical DDD/DJS with IVDS are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, DC 5243 (2017). 3. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124, 4.124a, DCs 8510 (2017). 4. The criteria for an earlier effective date of August 5, 2015, for the grant of service connection for radiculopathy of the right upper extremity associated with cervical DDD/DJS with IVDS are met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.400 (2017). 5. The criteria for a disability rating in excess of 10 percent for metatarsalgia right foot are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, DC 5279 (2017). 6. The criteria for a disability rating in excess of 20 percent for right ankle strain are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5271 (2017). 7. The criteria for an initial compensable disability rating for ventral hernia are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.114, DC 7339. 8. The criteria for an initial compensable disability rating for tinea versicolor are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7820-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Neck Disability Myofascial Neck Syndrome Prior to June 16, 2015 The Veteran's neck disability was initially rated as myofascial neck syndrome under DC 5343. Under DC 5243, cervical spine disabilities can be rated under the General Rating Formula or under the Formula for Rating IVDS. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, 5243. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. Under Diagnostic Code 5237, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; localized tenderness not resulting in abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of its height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal 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 of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25 , whichever method resulted in the higher evaluation. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The evaluation of the same disability under various diagnoses, known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14. The Veteran asserts that his neck disability was more disabling than reflected in his 10 percent rating prior to June 16, 2015. The Veteran was afforded a VA examination in October 2012. The Veteran reported flare-ups when turning his head to the right. He reported sharp pain. He denied arm pain or numbness. He reported that nothing aggravated his neck disability except turning left. Range of motion testing showed forward flexion to 40 degrees with pain at 40 degrees, extension to 35 degrees with pain beginning at 35 degrees, right lateral flexion to 35 degrees with pain at 35 degrees, left lateral flexion to 35 degrees with pain at 35 degrees, right lateral rotation to 60 degrees with pain at 60 degrees, and left lateral rotation at 60 degrees with pain beginning at 60 degrees. The Veteran's combined range of motion was 265 degrees. The Veteran did not show additional limitation of motion with repetitive-use testing. The Veteran has localized tenderness or pain to palpation. The examination was negative for guarding or muscle spasm of the cervical spine. The Veteran has full 5/5 of the bilateral upper extremities. There was no muscle atrophy shown. The Veteran had a normal reflex examination. A sensory examination showed normal sensation to light touch of the bilateral shoulder, inner/outer forearm, and hand/finger areas. The examination was negative for radicular pain or other signs or symptoms of radiculopathy. The examination was negative for IVDS. Imaging studies were negative for arthritis. The examiner concluded that the Veteran's vertebrae were well aligned with no significant narrowing of the disc spaces. Based on the foregoing, the Board finds that prior to June 16, 2015, the Veteran's neck disability more nearly approximates the criteria contemplated for a 10 percent rating under diagnostic code 5299-5237. The Veteran had forward flexion of the cervical spine to 40 degrees and a combined range of motion of 265 degrees. The evidence does not show that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis to warrant a 20 percent rating. The evidence is also silent for ankylosis of the cervical spine to warrant a higher rating. Thus, prior to June 16, 2015, a rating in excess of 10 percent for the Veteran's cervical spine disability, rated as myofascial neck syndrome, is not warranted. DDD/DJD with IVDS from June 16, 2015 The medical evidence shows that the Veteran's neck condition worsened necessitating that the Veteran's neck disability be rated under a different diagnostic code. The Veteran was afforded an additional VA examination in September 2016. The Veteran was diagnosed with cervical strain and intervertebral disc syndrome. The examiner reported that the Veteran had chronic neck problems since service. Prior imaging studies in 2011, 2012, and 2013 were all unremarkable. However, a more recent cervical MRI done in June 2015 showed broad based disc protrusion with mild narrowing of the thecal sac to 9 mm and bilateral uncovertebral joint hypertrophy with no significant neural foraminal stenosis. The Veteran reported flare-ups including increased pain, stiffness, weakness, and right upper extremity radiculopathy. Range of motion testing showed forward flexion to 30 degrees, extension to 40 degrees, right lateral flexion to 40 degrees, left lateral flexion to 45 degrees, right lateral rotation to 75 degrees, and left lateral rotation to 65 degrees. The Veteran's combined range of motion was 295 degrees. The Veteran was able to complete repetitive-use testing without additional limitation of motion. The Veteran showed muscle spasm of the cervical spine. The examination was negative for guarding. The Veteran showed decreased muscle strength (4/5) in the right upper extremity. The examination was negative for muscle atrophy. There was no ankylosis of the spine. Although a diagnosis of IVDS was noted, the Veteran did not have signs and symptoms due to IVDS that required bed rest prescribe by a physician or treatment by a physician in the previous12 months. The examiner concluded the Veteran now has radiographic evidence of cervical DDD/DJD and right upper extremity radiculopathy. As stated above, the rating schedule provides for a 30 percent rating with forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. The Veteran's examinations were negative for ankylosis of the cervical spine and showed forward flexion to 30 degrees, which most nearly approximates the 20 percent rating assigned. Furthermore, the Board finds that June 16, 2015, the date of the MRI showing indicating a worsening of symptoms, is the earliest date that it is factually ascertainable that the Veteran's neck disability warranted a 20 percent rating. The Board has also considered whether a higher evaluation would be warranted under the Formula for Rating IVDS. However, the medical evidence indicates that the Veteran does not have incapacitating episodes as a result of IVDS. See 38 C.F.R. § 4.71a, DC 5243. Thus, a rating in excess of 20 percent for the Veteran's cervical DDD/DJS with IVDS is not warranted. Radiculopathy of the Right Upper Extremity Associated with DDD/DJD with IVDS The Veteran's radiculopathy of the right upper extremity are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510 for evaluation of paralysis of the sciatic nerve. Under this provision, mild incomplete paralysis warrants a 20 percent disability evaluation for the major extremity and a 20 percent disability evaluation for the minor extremity; moderate incomplete paralysis warrants a 40 percent evaluation for the major extremity and 30 for the minor extremity; and severe incomplete paralysis warrants a 50 percent evaluation for the major extremity and a 40 percent disability evaluation for the minor extremity. A 70 percent disability evaluation is warranted for the major extremity and a 60 percent disability evaluation is warranted for the minor extremity for complete paralysis where all shoulder and elbow movements are lost or severely affected and hand and wrist movements are not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The terms "mild," "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. A March 2017 rating decision granted radiculopathy of the right upper extremity and assigned a 20 percent rating effective September 28, 2016. The Veteran's VA treatment records indicate that the Veteran was diagnosed with cervical radiculopathy of the right upper extremity on August 5, 2015. The Veteran reported numbness to his right arm and hand. He reported some loss in strength to the right hand but denied dropping things. During the September 2016 VA examination, an evaluation of the Veteran's reflexes showed the Veteran's bilateral biceps, triceps, and brachioradialis was hyperactive without clonus. A sensory examination showed decreased sensation in the right inner/outer forearm and the right hand/fingers. The Veteran showed mild paresthesia and/or dysesthesias and mild numbness in the right upper extremity due to radiculopathy. The radiculopathy was shown to be mild. The Board finds that the preponderance of the evidence shows that the Veteran's radiculopathy of the right upper extremity more nearly approximates the criteria for a 20 percent rating. The Veteran's radiculopathy manifests in, at worse, mild paresthesia and numbness. Moderate incomplete paralysis is not shown. The Board finds that an earlier effective date of August 5, 2015 for the grant of service connection for radiculopathy is warranted. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2017). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a) (2017). VA treatment records show that the Veteran was diagnosed with radiculopathy on August 5, 2015. Thus, August 5, 2015 - the date entitlement arose - is the earliest date that is factually ascertainable that an increase in the Veteran's neck disability occurred causing radiculopathy of the right upper extremity secondary to cervical DDD/DJS with IVDS. In sum, a 20 percent rating for radiculopathy is warranted effective August 5, 2015. Metatarsalgia Right Foot Disabilities of the foot are covered by diagnostic codes 5276 through 5284. The Veteran's metatarsalgia of the right foot has been rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5279. Under Diagnostic Code 5279, a 10 percent rating is warranted for both unilateral and bilateral anterior metatarsalgia (Morton's disease). As this is the maximum (and only) rating available under Code 5279, the Board must consider whether the disability warrants a higher rating under any other diagnostic codes for the foot. 38 C.F.R. § 4.71a. The Veteran asserts that his right foot disability is more disabling that reflected in his current 10 percent rating. The Board notes at the outset that the Veteran's only service-connected foot disability is right foot metatarsalgia. The Board further notes that a 10 percent rating is the maximum rating assignable under Diagnostic Codes 5277 (bilateral weak foot), 5280 (unilateral hallux valgus), 5281 (severe, unilateral hallux rigidus), and 5282 (hammer toe). See 38 C.F.R. § 4.71a. The Veteran is also not shown to have pes cavus so as to warrant a higher rating under Diagnostic Code 5278. See id. Similarly, the Board has considered whether a higher rating is warranted under DC 5283 (tarsal or metatarsal bones, malunion or, or nonunion of). However, the medical evidence is negative for malunion or nonunion of the tarsal or metatarsal. May and October 2014 VA treatment notes indicate that the Veteran had pes planus with associated foot strain. There was no evidence of swelling, redness, or increased temperature. The Veteran also had low grade metatarsalgia. The Veteran was afforded a VA examination in October 2012. The examination was negative for Morton's neuroma, hammer toes, hallux rigidus, claw foot, and malunion/nonunion of tarsal/metatarsal bones. The examiner noted a diagnosis of right foot sprain and metatarsalgia. The examiner noted a diagnosis of hallux valgus but reported that the Veteran did not have symptoms related to this condition. Imaging studies of the Veteran's foot showed normal findings and were negative for degenerative or traumatic arthritis. The examiner concluded that the Veteran did not have a fracture or dislocation or degenerative change. The plantar arch was normal. A very tiny spur was seen at the attachment of the plantar fascia. There was no joint effusion at the ankle and no plantar spurs. During a September 2016 VA examination, the examiner stated that a November 2014 MRI of the right foot revealed mild soft tissue swelling, mild first MTP capsulitis and tiny third metatarsal interspace bursitis, and diffuse muscle atrophy. The Veteran reported dorsal foot pain. He reported flare-ups decreased his capacity for prolonged walking. The examination was negative for pes planus, Morton's neuroma, hammer toe, pes cavus, malunion or nonunion of tarsal or metatarsal bones, other foot injuries or conditions, and surgical procedures. As the Veteran's VA treatment records show a diagnosis of pes planus, the Board has considered whether a rating in excess 10 percent is warranted under DC 5276 for pes planus (flatfoot). Under DC 5276, a noncompensable rating is assigned for symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate symptoms with weight-bearing line over or medial to great toe, inward bowing of the tendon achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is warranted for severe symptoms of the unilateral foot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is assigned for unilateral pronounced symptoms with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board finds that a rating in excess of 10 percent is not warranted under DC 5276 as medical evidence does not show severe symptoms such as objective evidence of marked deformity, pain on manipulation and use accentuate, swelling on use or characteristic callosities to warrant a 20 percent rating. The Board has also considered whether a higher rating is warranted under DC 5284 for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for other foot injuries that are moderate. Other foot injuries that are moderately severe or severe are assigned a 20 percent or 30 percent rating, respectively. The notes to Diagnostic Code 5284 state that a 40 percent rating will be assigned when there is actual loss of use of the foot. 38 C.F.R. § 4.71a. Diagnostic Code 5284 does not have a noncompensable rating, but where the rating schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. The evidence does not show that the Veteran's foot injury is moderately severe to warrant a 20 percent rating under DC 5284. Thus, a rating in excess of 10 percent for the Veteran's right foot metatarsalgia is not warranted. Right Ankle Strain The Veteran's right ankle strain is rated under 38 C.F.R. §4.71a, DC 5271. Under DC 5271 (ankle, limited motion), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. See 38 C.F.R. § 4.71a, DC 5271. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of 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 DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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 excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. The Veteran asserts that his right ankle disability is more disabling that reflected in his current 20 percent rating. During a June 2013 VA examination, the Veteran was diagnosed with right ankle sprain. He reported pain being worse in the morning with flare-ups during the day. He takes pain medication and uses bio freeze for flare-ups. He reported flare-ups occur 2 times a day for 20 to 30 minutes causing a 100 percent limitation on activity. Range of motion testing showed plantar flexion to 25 degrees with pain at 20 degrees and dorsiflexion (extension) to 10 degrees with pain at 5 degrees. With repetitive-use testing, the Veteran's right ankle plantar flexion was limited to 20 degrees and dorsiflexion was limited to 0 degrees. Factors contributing to the Veteran's right ankle functional impairment including weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. During flare-ups, pain, weakness, fatigability, and incoordination limit the Veteran's functional ability. The Veteran lost 43 percent of range of motion after repetitive-use testing. The Veteran showed full (5/5) muscle strength with plantar flexion and dorsiflexion. The Veteran showed right ankle laxity. The examination was negative for ankylosis. During a September 2016 VA examination, the examiner reported flare-ups with increased pain and stiffness. Range of motion testing showed plantar flexion to 30 degrees and dorsiflexion to 10 degrees. There was evidence of pain with weight-bearing. There was also evidence of localized tenderness or pain on palpation of the joint and associated soft tissue. The Veteran was able to complete repetitive-use testing without additional loss of function or range of motion. Muscle strength testing showed 4/5 strength (active movement against some resistance) for plantar flexion and dorsiflexion. The examination was negative for muscle atrophy and ankylosis. Although joint instability or dislocation was suspected, there was no right ankle laxity compared to the Veteran's left ankle. The Veteran reported using an ankle brace constantly. As the Veteran's service-connected right ankle disability is assigned the maximum available rating under DC 5271, a rating in excess of 20 percent is not available pursuant to that diagnostic code. In making this determination, the Board acknowledges that, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, 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 (1995). These provisions are not applicable when the Veteran's disability is already rated at the maximum rating for limitation of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). The only other anatomically relevant diagnostic code under which a rating in excess of 20 percent is available is 38 C.F.R. § 4.71a, DC 5270, which concerns ankylosis of the ankle. Schafrath, 1 Vet. App. at 592. According to DC 5270, a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion. The maximum 40 percent rating is warranted when the ankle is ankylosed at more than 40 degrees in plantar flexion, or at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. However, at no time during the pendency of this appeal has the Veteran's right ankle disability been shown to result in any ankylosis. As such, DC 5270 is not applicable. In sum, a rating in excess of 20 percent for a right ankle disability is not warranted. Ventral Hernia The Veteran's ventral hernia is rated under 38 C.F.R. § 4.114, DC 7339. Under DC 7339, a zero, non-compensable rating is assigned for a postoperative ventral hernia with healed wounds, without disability, and where a belt is not indicated. A 20 percent rating is assigned for a small hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. Id. A 40 percent rating is assigned under Diagnostic Code 7339 for a large ventral hernia, not well supported by belt under ordinary conditions. A 100 percent rating is assigned where the postoperative ventral hernia is massive, persistent, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. 38 C.F.R. § 4.114, Diagnostic Code 7339. The Veteran asserts that his ventral hernia is more disabling than his current noncompensable rating. During an October 2012 VA examination, the examiner noted a small ventral hernia but also indicated that an ultrasound would confirm whether it was a hernia or a lipoma. There was no indication of need for a supporting belt. A May 2015 VA treatment note shows the Veteran reported that his ventral hernia bulge caused - at worse - occasional uncomfortable and non-reducible. He reported discomfort with heavy lifting. He denied obstructive symptoms. His medical service provider offered a referral for a surgical evaluation which the Veteran denied. Several other treatment notes indicate the Veteran had no complaints related to his ventral hernia. Based on the foregoing evidence, the Board finds that the Veteran's ventral hernia symptoms more nearly approximate the criteria for a noncompensable rating. The Veteran's VA treatment records show mild symptoms and no indication of need for a supporting belt. The evidence does not show ventral hernia that is not well supported by belt under ordinary conditions or a healed ventral hernia with weakening of abdominal wall and indication for a supporting belt to warrant a 20 percent rating under DC 7339. In sum, a compensable rating for ventral hernia is not warranted. Tina Versicolor The Veteran's tinea versicolor is rated under Diagnostic Codes 7820-7806. Dermatitis or eczema affecting less than five percent of the entire body or less than five percent of exposed areas, and; requiring no more than topical therapy during the past 12-month period warrants a noncompensable rating. 38 C.F.R. § 4.118 , DC 7806. Dermatitis or eczema affecting at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating. 38 C.F.R. § 4.118, DC 7806. Dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating. 38 C.F.R. § 4.118, DC 7806. Dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas or; requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, DC 7806. The Veteran asserts that his tinea versicolor is more disabling than reflected in his current noncompensable rating. During a February 2014 VA examination, the examiner indicated that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. The Veteran did not have benign or malignant skin neoplasms. The Veteran did not have systemic manifestations due to any skin diseases. The Veteran was treated with topical medical for 6 weeks or more in the previous 12 months, but treatment was not constant. The Veteran did not have any treatments or procedures other than systemic or topic medications in the previous 12 months. The Veteran did not have any debilitating episodes in the prior 12 months. The examiner reported that the Veteran's tinea versicolor impacted less than 5 percent of the Veteran's total body area and less than 5 percent of the exposed body area. The examiner also noted that the tinea versicolor was present on the bilateral forearms with multiple hyper-pigmented lesions approximately 5 to 8mm in length and diameter in diffuse patter covering an area 20 cm by 8 cm on each forearm. He had three small annular lesions on the left posterior shoulder. The Board finds that the Veteran's tinea versicolor more nearly approximates the criteria contemplated by a noncompensable rating. The evidence shows that the Veteran's skin disorder affects less than 5 percent of the exposed body and does not require treatment other than topical therapy. The evidence does not show that the Veteran's skin disorder affects at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period to warrant a 10 percent rating. Thus, a compensable rating for tinea versicolor is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for myofascial neck syndrome prior to June 16, 2015 is denied. Entitlement to an evaluation in excess of 20 percent for cervical DDD/DJD with IVDS from June 16, 2015 is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of right upper extremity associated with cervical DDD/DJS with IVDS effective An earlier effective date of, August 5, 2015 for the grant of service connection for radiculopathy of right upper extremity associated with cervical DDD/DJS with IVDS is granted. Entitlement to an initial evaluation in excess of 10 percent for metatarsalgia right foot is denied. Entitlement to an initial evaluation in excess of 20 percent for right ankle strain is denied. Entitlement to a compensable initial evaluation for ventral hernia is denied. Entitlement to a compensable initial evaluation for tinea versicolor is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs