Citation Nr: 21002715 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-25 447 DATE: January 14, 2021 ORDER Entitlement to a compensable disability rating of 10 percent prior to January 23, 2020 for shin splints with stress fractures of the left lower extremity is granted. Entitlement to a disability rating in excess of 10 percent for shin splints with stress fractures of the left lower extremity is denied. Entitlement to a compensable disability rating of 10 percent prior to January 23, 2020 for shin splints with stress fractures of the right lower extremity is granted. Entitlement to a disability rating in excess of 10 percent for shin splints with stress fractures of the right lower extremity is denied. Entitlement to a compensable rating for seborrheic dermatitis is denied. FINDINGS OF FACT 1. Prior to January 23, 2020, the Veteran’s shin splints with stress fractures of the left lower extremity resulted in pain with prolonged activity, indicative of slight impairment. 2. For the entirety of the appeals period, the Veteran’s shin splints with stress fractures of the left lower extremity were characterized by pain with prolonged activity, without limitation of motion, loss of strength, or joint instability, indicative of no more than slight impairment. 3. Prior to January 23, 2020, the Veteran’s shin splints with stress fractures of the right lower extremity resulted in pain with prolonged activity, indicative of slight impairment. 4. For the entirety of the appeals period, the Veteran’s shin splints with stress fractures of the right lower extremity were characterized by pain with prolonged activity, without limitation of motion, loss of strength, or joint instability, indicative of no more than slight impairment. 5. The Veteran’s seborrheic dermatitis has, for the entirety of the appeals period, involved less than 5 percent of both the exposed area and the total area of the body, and has not required the use of systemic therapy for treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 10 percent prior to January 23, 2020, for shin splints with stress fractures of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40-45, 4.71a, Diagnostic Code (DC) 5262. 2. The criteria for entitlement to a disability rating in excess of 10 percent for shin splints with stress fractures of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40-45, 4.71a, DC 5262. 3. The criteria for entitlement to a disability rating of 10 percent prior to January 23, 2020, for shin splints with stress fractures of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40-45, 4.71a, DC 5262. 4. The criteria for entitlement to a disability rating in excess of 10 percent for shin splints with stress fractures of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40-45, 4.71a, DC 5262. 5. The criteria for entitlement to a compensable rating for seborrheic dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to October 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of this hearing has been added to the record. This appeal was previously remanded by the Board in August 2019 for additional development. That development has been accomplished and the appeal has been returned to the Board. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 1. Entitlement to a compensable disability rating prior to January 23, 2020 for shin splints with stress fractures of the left lower extremity 2. Entitlement to a disability rating in excess of 10 percent effective January 23, 2020 for shin splints with stress fractures of the left lower extremity 3. Entitlement to a compensable disability rating prior to January 23, 2020 for shin splints with stress fractures of the right lower extremity 4. Entitlement to a disability rating in excess of 10 percent effective January 23, 2020 for shin splints with stress fractures of the right lower extremity The Veteran seeks compensable ratings prior to January 23, 2020, and in excess of 10 percent effective that date for his shin splints with stress fractures of the right and left lower extremities. He asserts these disabilities have worsened in severity, and increased ratings are therefore warranted. The Veteran has been granted separate ratings under Diagnostic Code (DC) 5299-5262 for his disabilities of the lower extremities. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5262, for impairment of the tibia and fibula, provides a 10 percent rating for malunion resulting in slight knee or ankle disability, 20 for moderate disability, and 30 percent for marked disability. A 40 percent rating is warranted for nonunion of the tibia or fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the U.S. Court of Appeals for Veterans Claims (Court) has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App at 44 (noting that although “pain itself does not rise to the level of functional loss,” pain which “affects some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, a rating is generally assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Considering first the period prior to January 23, 2020, the Veteran has been granted separate noncompensable ratings for each lower extremity for this period. After a consideration of the totality of the record, the Board finds compensable ratings of 10 percent and no higher for each lower extremity are warranted for this period. VA examinations in April 2012 and June 2013 had essentially similar findings. On both occasions, a history of bilateral shin splints with stress fractures was noted. The Veteran reported onset of these disabilities following training runs in Army boots. Current symptoms included pain and tenderness of the bilateral shins and difficulty with standing, walking, or running for long periods of time. Range of motion testing of the knees indicated flexion to 140 degrees bilaterally, and extension to 0 degrees bilaterally. No objective evidence of painful motion was noted. No reduction in range of motion occurred with repetitive motion. Functional loss included interference with sitting, standing, and/or weight-bearing. Muscle strength was also within normal limits for both lower extremities, and both knees were stable to joint stability tests. The Veteran did not require an assistance device to aid mobility; he did, however, use orthotic inserts in both shoes. No history of surgery or other invasive treatment was noted and he was without scars of either lower extremity. X-ray studies of the lower extremities were negative for arthritis or other significant findings. At his March 2019 hearing, the Veteran reported chronic pain of both lower extremities. He stated this pain worsened with activity, including prolonged running, walking, or standing. Thus, based on this competent medical and lay evidence, and in light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that compensable ratings of 10 percent are warranted prior to January 23, 2020, for the Veteran’s shin splints of each lower extremity. The Veteran has reported pain of both lower extremities with prolonged activity. Affording the Veteran the full benefit of the doubt, the Board finds these symptoms equate to slight impairment of the lower extremities at the knees and ankles, as would warrant a 10 percent rating under DC 5262. As such, a 10 percent rating is granted for each lower extremity prior to January 23, 2020. The Board will now consider entitlement to disability ratings in excess of 10 percent for the entirety of the appeals period. More recently, the Veteran was afforded a VA examination in February 2020. His claims file was reviewed in conjunction with the examination. A history of bilateral shin splints was noted. Current symptoms included bilateral shin pain with prolonged running. Upon physical examination, the examiner determined the Veteran’s bilateral shin splints did not affect range of motion of either the knees or ankles bilaterally. He was also without loss of strength or joint instability of either lower extremity. The Veteran did not require an assistance device to aid mobility. He did, however, continue to use orthotic inserts in his shoes. No history of surgery or other invasive treatment was noted and he was without scars of either lower extremity. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for either lower extremity at any time during the pendency of this appeal. The evidence of record does not demonstrate more than slight impairment of either lower extremity, as would warrant the next higher evaluation. Specifically, the Veteran’s shin splints with stress fractures of the lower extremities have not resulted in moderate impairment of either lower extremity. While he has made credible reports of pain of both shins, increasing with use, he has full range of motion of both knees and ankles, even after repetitive use. He is also without joint instability or loss of muscle strength. X-rays of the lower extremities are also negative for degenerative or traumatic arthritis or other significant bony abnormalities. He has not required surgical or other invasive therapy for either leg, and he is able to both run and walk in a normal manner, aided only by orthotic inserts for his shoes. The Board has considered the lay statements noting that the Veteran has had to turn down jobs that require standing for a long period of time or lifting heavy equipment. However, the preponderance of the evidence is against a finding of moderate impairment of the knees or ankles, as would warrant the next higher evaluation of 20 percent. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). There is no lay or medical evidence showing the Veteran’s shin splints have been manifested by ankylosis of the knees or ankles, dislocated or removed semilunar cartilage, or genu recurvatum at any time during the appeal period. Therefore, Diagnostic Codes 5256, 5258, 5259, 5263, 5270, or 5271 are not applicable in this case. In conclusion, the Board finds 10 percent disability ratings are warranted prior to January 23, 2020 for each shin splint of the lower extremities. The preponderance of the evidence is, however, against the Veteran’s claims for disability ratings in excess of 10 percent for shin splints with stress fractures of the lower extremities at any time during the pendency of the appeal. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a compensable rating for seborrheic dermatitis The Veteran seeks a compensable rating for his service-connected seborrheic dermatitis. He asserts this disability has increased in severity, and an increased rating is thus warranted. The Veteran’s seborrheic dermatitis is rated under DC 7806, for dermatitis or eczema. The criteria for the evaluation of this disability changed during the pendency of this appeal. VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added the General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the regulations in effect at the time the Veteran filed his claim, Diagnostic Code 7806 provided: 0 percent rating 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 is required during the past 12-month period. 10 percent rating is warranted if 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 are required for a total duration of less than six weeks during the past 12-month period. 30 percent rating is warranted if 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 are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent 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, DC 7806 (2017). Under the new regulations, effective August 13, 2018, DC 7806 will be rated under a General Rating Formula for Skin, under which: 10 percent rating will be assigned if the disability meets at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 30 percent rating will be assigned if the disability meets at least one of the following: 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. 60 percent rating will be assigned if the disability meets at least one of the following: 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2020). The new regulation defines systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). The ratings schedule for each percentage of entitlement has two criteria that can be satisfied for entitlement for that rating. The first criteria are based on the percent of the body affected. Alternatively, if the affected area is not large enough, the Veteran can receive entitlement to a rating if they are receiving systemic therapy of a corticosteroid or other immunosuppressive drug as treatment for the disability. A June 2013 dermatological examination was afforded the Veteran. He reported initial onset of his seborrheic dermatitis in 2003, with an outbreak on his head. According to the examination report, however, the Veteran was currently without any scarring or disfigurement of the head, face, or neck. He was also without any benign or malignant neoplasms or systemic manifestations. He used topical corticosteroids for his seborrheic dermatitis. On objective examination, less than 5 percent of his total or exposed body area was affected. He had skin flaking of the face, ears, and scalp consistent with dermatitis. More recently, the Veteran was afforded a February 2020 examination, with June 2020 addendum. His claims file was reviewed in conjunction with the examination. He reported seborrheic dermatitis of the face and scalp, for which he used a topical ointment. He reportedly used this topical ointment for periods of greater than six weeks or more, but not constantly. His seborrheic dermatitis was noted to involve less than 5 percent of his total body area, and less than 5 percent of exposed body areas. He was without benign or malignant neoplasms or metastases, and no scarring or disfigurement was noted. No other physical complications or functional impairment was noted. In a June 2020 addendum, the examiner confirmed that the Veteran used a topical steroid cream medication for his seborrheic dermatitis. Thus, according to both the June 2013 and February 2020 VA examination reports, the Veteran’s seborrheic dermatitis affects less than 5 percent of both the exposed and total area of Veteran’s body. Both examinations also confirm the periodic use of topical corticosteroid medications to address this disability. The Veteran contends that the medication he is taking qualifies as a systemic therapy, such as corticosteroids or immunosuppressive drugs, and a compensable rating is thus warranted. As noted above, the new regulations define systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Prior to August 13, 2018, the rating criteria stated treatment “such as” corticosteroids or other immunosuppressive drugs. The new rating criteria states treatment “including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs.” It is noted that the use of “such as” and “including, but not limited to” demonstrate that the treatments after that phrase are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the treatment, or their effects, that would justify a particular rating. While the new regulation includes a more expansive list, it is noted that phototherapy, retinoids, biologics, photochemotherapy, and PUVA treatments are immunosuppressive treatments. Under the old criteria, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. See Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). The pertinent consideration is whether the treatment is administered on a large enough scale to affect the body as a whole. Id. at 1355. Specifically, the Board must address whether the use of the topical corticosteroids was either systemic or topical therapy as contemplated by DC 7806. As noted above, the pre-2018 regulations do not contain a definition of topical or systemic therapy; instead, this determination depends on the particular facts in each case. After considering the evidence of record, the Board finds that the use of corticosteroids in this case was topical and not systemic therapy. As an initial matter, the Board notes that topical is defined as “pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” See Dorland’s Illustrated Medical Dictionary 1966 (31st Ed. 2007). By contrast, systemic is defined as “pertaining to or affecting the body as a whole.” Id. at 1888. In this context, the Board notes that the use of corticosteroids in this case was on a frequent, but not constant, basis. According to the June 2013 and February 2020 VA examination reports, the Veteran used corticosteroid creams for periods of six weeks or more, but not constantly. The Board also notes that the evidence shows the Veteran’s skin disability involved less than 5 percent of the entire body and less than 5 percent of exposed areas. The evidence also does not reflect that the use of the topical corticosteroids resulted in side effects that affected areas of the body other than the Veteran’s head and scalp. The remainder of the record does not otherwise support a finding that the use of topical corticosteroids to by the Veteran is equivalent to the use of corticosteroids or other immunosuppressive drugs that would affect his entire body. See Burton v. Wilkie, 30 Vet. App. 286 (2018) (for a treatment to qualify as systemic under DC 7806 the treatment must pertain to or affect the body as a whole and to operate as treatment of disease). (Continued on the next page)   Therefore, after considering the lay and medical evidence of record, as well as prevailing medical understanding of the terms “topical” and “systemic,” the Board finds the use of topical corticosteroids in this case was topical, not systemic, therapy and, thus, does not provide a basis on which to assign a compensable rating in this case. Upon review of the evidence of record, the Board finds that a compensable disability rating for the Veteran’s service-connected seborrheic dermatitis is not warranted. Throughout the period on appeal, the Veteran’s disability has been shown to affect less than 5 percent of his entire body or exposed area, requiring no more than topical therapy. Accordingly, as the criteria listed for a 10 percent rating under DC 7806 have not been met, a higher disability rating is not warranted. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.