Citation Nr: 18143687 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 14-29 984 DATE: October 22, 2018 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to an initial rating of 20 percent for status post left ankle fracture and left Achilles tendon repair is granted. Entitlement to an initial rating of 10 percent for pseudofolliculitis barbae (PFB) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his right knee disability is at least as likely as not related to his active service. 2. For the entire period on appeal, the Veteran’s service-connected left ankle disability has been manifested by marked limitation of motion with no ankylosis or deformity. 3. For the entire period on appeal, the Veteran’s service-connected PFB has been manifested by disfigurement of the face and neck with hyperpigmentation in an area exceeding 6 square inches (39 sq. cm.) with no other characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an initial rating of 20 percent, but no higher, for status post left ankle fracture and left Achilles tendon repair have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5271. 3. The criteria for an initial rating of 10 percent, but no higher, for PFB have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7806-7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 2002 to August 2012 with service in Iraq. In June 2018, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. 1. Entitlement to service connection for a right knee disability The Veteran contends that his right knee disability was caused by his military service. Specifically, he argues that he first experienced right knee pain in service and that it has continued to the present. He believes that his in-service right knee complaints are related to his current right knee diagnoses. Therefore, he believes service connection is warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). With regard to a present disability, the Veteran has been diagnosed with various right knee disorders, including osteochondritis dissecans, a grade I sprain of the medial collateral and posterior oblique ligaments, and grade IV chondromalacia. See private MRI, June 2018; private DBQ, July 2018. The first element of Shedden/Caluza is met. With regard to an in-service event, the Veteran’s service treatment records reflect treatment for right knee pain and a contusion of the right knee in 2009 and patellofemoral syndrome in 2012. The second element of Shedden is also met. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed right knee disability and his in-service right knee symptoms. The Veteran submitted a July 2018 Disability Benefits Questionnaire (DBQ) from his private physician. The DBQ noted his diagnosis of osteochondritis dissecans of the right knee and his history of falls with resulting right knee pain in service. The private physician concluded that the Veteran’s current right knee disability was related to his time in service because this type of injury is usually caused by repetitive trauma, like the Veteran experienced in service. The Board notes that there are two VA examinations of record. However, neither of the VA examiners was able to diagnose a right knee disorder and, therefore, did not provide an opinion on the etiology of any disorder. As such, these examinations are not relevant to the question of a medical nexus. In light of the positive evidence and lack of sufficiently probative negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current right knee disability is related to his military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt will be conferred in the Veteran’s favor. The service-connection claim for a right knee disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the 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. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 2. Entitlement to an initial rating in excess of 10 percent for status post left ankle fracture and left Achilles tendon repair The Veteran has been assigned an initial 10 percent rating under Diagnostic Code 5271 for his service-connected left ankle disability. He contends that a higher initial rating is warranted. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle. A 20 percent rating is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Veteran was first examined for his left ankle disability in August 2012. At that time, he complained of pain and difficulty walking, particularly during flare ups. The examiner recorded range of motion measurements of 40 degrees of plantar flexion with pain at 40 degrees and 5 degrees of dorsiflexion/extension with pain at 5 degrees. He noted functional loss from the Veteran’s decreased movement and pain on movement. There was no localized tenderness or pain on palpation and muscle strength and joint stability testing was normal. The Veteran reported a history of bilateral shin splints and bilateral stress fractures of the lower extremities with no current symptoms, as well as left Achilles tendonitis or tendon rupture with current swelling and limited range of motion. An x-ray showed an old healed fracture deformity of the medial malleolus. The examiner diagnosed the Veteran with status post left ankle fracture, healed, and status post Achilles tendon repair. The Veteran was more recently examined for his left ankle in February 2018. At that time, he complained of constant pain, swelling, and worsening symptoms during cold weather. He denied any flare ups, but reported occasional use of a brace. He reported that his left ankle disability affected his ability to work out and prevented him from wearing high top shoes. The examiner recorded range of motion measurements of 0 to 10 degrees of dorsiflexion and 0 to 30 degrees of plantar flexion with moderate pain in the Achilles area on motion. There was no additional limitation of motion with repetitive movement. The examiner observed no muscle atrophy, decrease in muscle strength, ankylosis, or suspected instability or dislocation. An x-ray did not show degenerative or traumatic arthritis. The examiner diagnosed the Veteran with status post Achilles tendon repair. He concluded that the Veteran’s left ankle disability caused 0-1 week of time lost from work in the last 12 months and would limit his ability to walk or stand for long periods at work. In addition to the VA examination reports, the medical evidence includes VA treatment records noting the Veteran’s complaints of limited range of motion and pain in the left ankle. These records are consistent with the VA examinations. With resolution of reasonable doubt in favor of the Veteran, the Board finds that his left ankle disability warranted an initial 20 percent rating for the entire period on appeal. When considering his limited range of motion, as well as the pain experienced within his limited range of motion, the Board finds that it is reasonable to conclude that his limitation of motion of the ankle is marked. Affording the Veteran the full benefit of the doubt, the Board finds that the totality of the evidence favors the assignment of an initial 20 percent rating for the left ankle disability throughout the appeal period. This is the maximum rating available under Diagnostic Code 5271. Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the now assigned 20 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). 3. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) The Veteran has been assigned a noncompensable initial rating under Diagnostic Code 7806 for his service-connected PFB. He contends that a higher initial rating is warranted. Under Diagnostic Code 7806, a 0 percent rating is assigned for less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned for at least 5 percent but less than 20 percent of the entire body or of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The U.S. Court of Appeals for Veterans Claims has held that the use of topical corticosteroids constitutes systemic therapy under 38 C.F.R. § 4.118, Diagnostic Code 7806. Johnson v. McDonald, 27 Vet. App. 497, 504 (2016). Dermatitis or eczema may alternatively be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. Diagnostic Code 7800 provides the rating criteria for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. A 10 percent rating is assigned for one characteristic of disfigurement. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at its widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissues, (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). The Veteran was first examined for his PFB in August 2012. The examiner diagnosed him with pseudofolliculitis to the neck. Despite this diagnosis, the examiner indicated that the Veteran did not have scarring or disfigurement of the head, face, or neck and did not address any of the characteristics of disfigurement. The Veteran denied using any oral or topical medications or other treatment in the past 12 months. The examiner noted that PFB affected less than 5 percent of the total body area and less than 5 percent of the exposed area. The Veteran was next examined in February 2018. The examiner diagnosed him with chronic PFB. He noted that the PFB caused scarring or disfigurement of the head, face, or neck, with no systemic manifestations or oral or topical medications. The examiner indicated that his PFB marks were too numerous to count on the posterior and anterior neck and covered less than 5 percent of the total body area and less than 5 percent of the exposed area. The examiner observed abnormal hyperpigmentation of an area of approximately 98 sq. cm., and no elevation, depression, adherence to underlying tissue, or missing underlying tissue. In addition to the VA examination reports, the medical evidence includes VA treatment records that are consistent with the examination reports. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his service-connected PFB warranted an initial 10 percent rating for the entire period on appeal. Although the first VA examiner stated that he did not have disfigurement of the head, face, or neck, that is inconsistent with the finding of PFB on the neck. Further, there is no indication that his PFB was notably different between the two examinations. The Board finds it is reasonable to conclude that he experienced one characteristic of disfigurement – abnormal pigmentation – throughout the appeals period. A single characteristic of disfigurement warrants a 10 percent initial rating. As such, and affording the Veteran the full benefit of the doubt, the Board finds that the totality of the evidence favors the assignment of an initial 10 percent rating for PFB throughout the appeal period. Although the Board finds that a higher initial rating of 10 percent is warranted, there is no evidence to support an even higher rating under Diagnostic Code 7806-7800. There is no evidence of any characteristics of disfigurement other than abnormal pigmentation. Without evidence of additional characteristics of disfigurement, a higher rating of 20 percent is not warranted. There is also no evidence of scars or an affected area of more than 20 percent of the entire body or exposed areas to warrant a higher rating under any other potentially applicable diagnostic codes. Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the now assigned 10 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the Veteran’s PFB warrants a 10 percent initial rating throughout the entire appeal periods, but that the claim of entitlement to an initial disability rating in excess of 10 percent at any time during the appeal period must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased initial rating, beyond that assigned herein, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel