Citation Nr: 18159928 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 13-23 526 DATE: December 21, 2018 ORDER A rating in excess of 10 percent for a right abdominal scar is denied. A 10 percent rating for tinea unguim of the right foot is granted. A compensable rating for tinea unguim of the left foot is denied. REMANDED A rating in excess of 10 percent for a left ankle disability is remanded. A rating in excess of 10 percent for a left knee disability is remanded. A rating in excess of 10 percent for left hip strain is remanded. (The issue of entitlement to payment or reimbursement of medical expenses will be the subject of a separate decision issued under a different docket number, which will be sent to the Veteran and his representative under separate cover.)   FINDINGS OF FACT 1. The Veteran’s scar of the right abdominal is noted as being painful with no further symptomatology. 2. The Veteran’s right foot tinea unguium covers less than 5 percent of the entire body or less than 5 percent of the exposed area affected, and; no topical or therapy is required, but involves painful, inflamed sores on two toes of the right foot. 3. The Veteran’s left foot tinea unguium covers less than 5 percent of the entire body or less than 5 percent of the exposed area affected, and; no topical or therapy is required, and is not painful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a painful scar on the right abdominal has not been met. 38. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.118 Diagnostic Code 7804. 2. The criteria for a 10 percent rating for a right foot skin disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, Diagnostic Code 4.118, Diagnostic Code 7801-7813. 3. The criteria for a compensable rating, for a left foot skin disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, Diagnostic Code 4.118, Diagnostic Code 7801-7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2005 to March 2008. This claim was previously before the Board in October 2015. At that time the Board remanded the Veteran’s claims for additional development. The requested development has been completed and the Veteran’s claim is once again before the Board for adjudication. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 (2017). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 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). The Court later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The rating schedule for the skin effective prior to August 13, 2018, is set forth as follows: 7800 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: With 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 80 With 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 50 With 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 30 With one characteristic of disfigurement 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply §4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): A superficial scar is one not associated with underlying soft tissue damage Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 7805 Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 7813 Dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris): Rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability Effective since August 13, 2018, the applicable criteria were amended. The new rating schedule is as follows: 7800 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: With 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 80 With 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 50 With 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 30 With one characteristic of disfigurement 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply §4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 7805 Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code General Rating Formula For The Skin For DCs 7806, 7809, 7813-7816, 7820-7822, and 7824: At least one of the following 60 Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period 60 At least one of the following 30 Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period At least one of the following 10 Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or At least 5 percent, but less than 20 percent, of exposed areas affected; or Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period No more than topical therapy required over the past 12-month period and at least one of the following 0 Characteristic lesions involving less than 5 percent of the entire body affected; or Characteristic lesions involving less than 5 percent of exposed areas affected Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to DC 7824 7813 Dermatophytosis (ringworm: Of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium (onychomycosis); of inguinal area (jock itch), tinea cruris; tinea versicolor). Evaluate under the General Rating Formula for the Skin Claims pending prior to the August 13, 2018 effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. See 83 Fed. Reg. 32592, 32593 (July 13, 2018). 1. Abdominal Scar The Veteran has asserted entitlement to an increase rating for his service-connected right abdominal scar. The Veteran’s scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7804. As part of his claim for an increased rating, the Veteran was afforded a VA examination in January 2016. At the Veteran’s examination is complained that the scar was painful and that his clothes bother the scar. The examiner noted that the scar appeared normal and not inflamed. The scar was measured as 4.5 cm long on the anterior trunk on the right side of the abdomen. Further, the examiner noted that the Veteran’s scar did not have any functional impact on the Veteran and emphasized that the scar was normal, not inflamed, and not constricting in any way. The Board finds that no higher than a 10 percent rating is warranted. The Veteran stated that his clothes cause the scar to be inflamed, but on examination, there was no evidence the scar being inflamed. However, on examination there was objective evidence of only has one scar, and it has been reported as painful but not unstable, and the examiner repeatedly noted that there was no evidence of inflammation. A rating higher than 10 percent cannot be assigned. In this case, the Veteran’s service-connected of the right abdominal is not shown to have any disabling effects or other compensable symptomatology. Therefore, no higher rating is warranted under an alternative diagnostic code. The Board notes that this same result is reached regardless of whether the old or new criteria are applied. As the evidence warrants no higher than a 10 percent rating, the claim is denied. 2. Left and Right Foot Disability The Veteran has asserted entitlement to a compensable rating for his right and left foot disability. The Veteran’s is service connected for tinea unguium on the left and right foot. As part of his claim for an increased rating, he was afforded a VA examination in January 2016. The examiner noted that the disability is only present on his right great toenail and middle toenail. The Veteran reported that these two toes hurt to touch and are inflamed. However, the examiner noted that the toes did not appear to be inflamed, but that the nails were thickened and the great toenail was broken. Upon further examination, the examiner noted that the Veteran was not receiving any treatment with oral or topical medications or any other systemic treatment. He had no debilitating or non-debilitating episodes. Lastly, none of the body or exposed skin was affected by his disability, and there was no functional impact on his ability to work due to his skin condition. The dis does not involve at least five percent of the of the entire body or at least 5 percent but less than 20 percent of the exposed area affected; or intermittent systemic therapy is required for a total duration of less than six weeks during the past 12-month period. However, under Diagnostic Code 7804, the Veteran had complaints of painful, inflamed sores. This is consistent with a July 2008 VA medication record, where the Veteran complained of painful nail fungus on two of the toes of his right foot. The doctor at that time observed and documented the symptoms. This was prior to the appeal period. Nonetheless, it informs this decision as it is consistent with the complaints he gave to the VA examiner and therefore lends credibility to those statements. The Board finds that the such symptoms are analogous to one or two scars that are painful, which warrants a 10 percent rating under DC 7804. The same result is reached regardless of whether the old or new criteria are considered. As the symptomatology is limited to the right foot, the 10 percent rating is granted for that foot. To this extent, the appeal is granted.   REASONS FOR REMAND 1. A rating in excess of 10 percent for a left ankle disability is remanded. 2. A rating in excess of 10 percent for a left knee disability is remanded. 3. A rating in excess of 10 percent for left hip strain is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, remand for a new VA examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left ankle, left knee, and left hip disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson