Citation Nr: 21002718 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-23 660 DATE: January 14, 2021 ORDER Entitlement to a compensable rating for bilateral feet epidermophytosis is denied. Entitlement to a rating higher than 10 percent for multilevel osteoarthritis and degenerative disc disease of the lumbosacral spine (hereinafter, lumbar spine disability) is denied. FINDINGS OF FACT 1. The Veteran's bilateral feet epidermophytosis does not involve 5 to 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. 2. The evidence shows that the Veteran’s lumbar spine disability is manifested by forward flexion greater than 60 degrees, without muscle spasm, guarding, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral feet epidermophytosis are not met 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. 2. The criteria for a rating higher than 10 percent for lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1964 to August 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision from the Agency of Original Jurisdiction (AOJ). In January 2020, the Board remanded these matters for additional development. The case has now been returned to the Board for adjudication. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral feet epidermophytosis The Veteran contends his skin disability is worse than indicated by his noncompensable rating. The Veteran's skin disability is currently rated under DC 7806. VA recently amended DC 7806, but claims pending on August 13, 2018 may be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). In this case, the pre-amended version is more favorable and will be applied. Id.; 38 C.F.R. § 4.118, DC 7806. Under the pre-amended DC 7806 provides that dermatitis involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensable. Amended DC 7806 provides that characteristic lesions involving less than 5 percent of the entire body, and; no more than topical therapy required over the past 12-month period, is rated noncompensable. Dermatitis or eczema involving 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 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, is rated 10 percent disabling. Dermatitis or eczema involving 20 to 40 percent of the entire body or 20 to 40 percent 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, is rated 30 percent disabling. Dermatitis or eczema 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 such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. The Veteran underwent a VA examination in March 2011. He reported intermittent dry, scaly, itchy skin on both feet for which he uses over-the-counter topical creams without improvement. Upon examination, the examiner noted that both feet had dry, scaly skin from ankle level down. The examiner noted that this represented less than 5 percent of the Veteran’s total body area and 0 percent of his exposed area. Pursuant to the January 2020 Board remand, the Veteran was afforded a VA examination in January 2020. He reported dry, scaly feet and stated that over-the-counter topical cream helps a little. Upon examination, the examiner noted that the Veteran uses over-the-counter moisturizing cream and the duration of use was 6 weeks or more, but not constant. The examiner further noted that the Veteran had visible characteristic lesions on lest than 5 percent of his total body area and 0 percent of his exposed area. Based upon review of the evidence, a higher rating is not warranted for the Veteran’s bilateral feet epidermophytosis. Less than 5 percent of the Veteran’s total body area is affected, and only over-the-counter topical cream is used for treatment. There is no evidence of disabling scars or intermittent systemic therapy; therefore, the evidence does not show that a higher 10 percent rating is warranted, and the claim is denied. Lumbar spine disability The Veteran’s lumbar spine disability is currently rated as 10 percent disabling pursuant to Diagnostic Code 5005-5236. The current appeal stems from an October 2010 increased rating claim. The October 2011 rating decision on appeal continued the assigned 10 percent rating. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The evidence of record does not show that the Veteran has experienced IVDS in his lumbar spine during the period on appeal, nor has he been prescribed bed rest for his back; as such, a rating pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes (requiring incapacitating episodes for at least 2 weeks to warrant a rating higher than 10 percent) is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s spine disability under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent rating is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; and 50 and 100 percent ratings are warranted for unfavorable and favorable ankylosis. 38 C.F.R. § 4.71a. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran underwent a VA examination in March 2011. He reported that his back was worse and that he had flare-ups once or twice per year which lasted from one to two weeks. He noted that he had no incapacitating episodes. Upon examination, the examiner noted pain on motion, weakness and tenderness. Range of motion testing showed flexion limited to 80 degrees, extension limited to 15 degrees, left lateral flexion limited to 15 degrees, left lateral rotation limited to 30 degrees, right lateral flexion limited to 10 degrees, and right lateral rotation limited to 30 degrees. The examiner noted there was objective evidence of pain on range of motion testing. No additional loss of motion was noted on repetitive motion as a result of pain, weakened movement, fatigue or incoordination. Muscle tone and power were within normal limits and equal bilaterally with the exception of the bilateral hips which were reduced to 4 out of 5. No muscle atrophy was noted. Sensation to touch and pinprick was within normal limits and equal bilaterally. Deep tendon reflexes were normal and equal bilaterally. In a February 2019 statement, the Veteran’s representative indicated that the Veteran’s back disability had worsened; therefore, the Veteran was afforded a VA examination in January 2020. During the examination, the Veteran reported flareups that caused more pain than the typical daily pain. He indicated that avoids running, and tries to avoid heavy lifting, bending and prolonged walking. Range of motion testing showed flexion limited to 80 degrees, extension limited to 20 degrees, left lateral flexion limited to 20 degrees, left lateral rotation limited to 30 degrees, right lateral flexion limited to 10 degrees, and right lateral rotation limited to 20 degrees. The examiner noted there was objective evidence of pain on range of motion testing. There was localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spin. No additional loss of motion was noted on repetitive motion as a result of pain, weakened movement, fatigue or incoordination. The examiner noted that repeated use over time would cause pain, fatigue, and lack of endurance; however, there would be no additional loss of range of motion or at most, limitation of flexion to 70 degrees and limitation of extension to 15 degrees. Based on a review of the evidence, the Board finds that a rating higher than 10 percent is not warranted. The Veteran has not been shown to have forward flexion of the thoracolumbar spine to 60 degrees or less or a combined range of motion of the thoracolumbar spine to 120 degrees or less as contemplated by a higher rating under Diagnostic Code 5236. Likewise, the record does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. With consideration of pain, functional loss, repetition x 3, and flare-ups, limitation of forward flexion was recorded as limitation of flexion to 80 degrees, at worst and limitation of extension to 20 degrees, at worst. The Board the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. As noted above, the January 2020 VA examination noted that repetitive use over time would result in limitation of flexion to 70 degrees, at worst and limitation of extension to 15 degrees, at worst. The evidence shows back pain, stiffness, and tenderness, but does not include findings consistent with a rating higher than the 10 percent rating assigned. Therefore, an increased rating higher than 10 percent for the Veteran's service-connected back disability is not warranted. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply, and service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.