Citation Nr: 21002771 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-08 376 DATE: January 14, 2021 ORDER Service connection for left great toenail onychomycosis is granted. Service connection for folliculitis is granted. A rating in excess of 20 percent for thoracolumbar spine compression deformity and disc disease with chronic low back pain (lumbar spine disability) is denied. REMANDED Service connection for cervical spine disability is remanded. Service connection for bilateral knee disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds his left great toenail onychomycosis began during active service. 2. Resolving reasonable doubt in favor of the Veteran, the Board finds his folliculitis began during active service. 3. The preponderance of the evidence is against finding the Veteran’s lumbar spine disability produced forward flexion to 35 degrees, favorable ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least 4 weeks but less than 6 weeks during a 12 month period. CONCLUSIONS OF LAW 1. The criteria for service connection for left great toenail onychomycosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for folliculitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 20 percent for lumbar disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from November 1983 to October 1988 and from November 2004 to July 2006. Additionally, the record indicates the Veteran served active duty for special work (ADSW) and active duty for training (ACDUTRA). 1. Service connection for left great toenail onychomycosis is granted. The Veteran contended left great toenail fungus began during his deployment in Iraq. See December 2008 claim and September 2010 statement. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran is diagnosed with left great toenail onychomycosis during the appeal period. Therefore, the question for the Board is whether the Veteran’s left great toenail onychomycosis began during active service or is related to active service. Resolving reasonable doubt in favor of the Veteran, the Board finds his left great toenail onychomycosis began during active service. Service treatment records (STR) show a March 2006 visit observed nail dystrophy to the left toenail. The Veteran was assessed with onychomycosis. Post-service treatment records show a June 2009 VA treatment visit for left first toenail fungus. The Veteran was prescribed clotrimazole for fungal infection to his toenails. An August 2014 VA treatment visit observed scaling and yellowing of the left first toenail. The Veteran was assessed with onychomycosis. The Board gives probative weight to the Veteran’s lay statements that his left great toenail fungus began during his deployment to Iraq and continued since that time. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (a lay person is competent to report observable symptomatology of an injury or illness). The statements are consistent with STR and post-service records assessing onychomycosis. There is not competent conflicting evidence to support finding the Veteran’s left great toenail onychomycosis is not related to service. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection for left great toenail onychomycosis is granted. 2. Service connection for folliculitis is granted. The Veteran contended skin rash began during his deployment in Iraq. See June 2008 statement, September 2010 statement, and March 2012 statement. The Veteran is diagnosed with folliculitis during the appeal period. Therefore, the question for the Board is whether his folliculitis began during active service or is related to active service. Resolving reasonable doubt in favor of the Veteran, the Board finds his folliculitis began during active service. STR show a June 2005 STR assessment of dermatitis. A July 2005 Post Deployment Health form reported experiencing skin disease or rash during deployment. A February 2006 STR reported rash and was assessed with folliculitis. Post-service, the Veteran reported recurring body rash since serving in Iraq. VA treatment visits in November 2015, December 2015, and January 2016 reported body rash intermittently flaring since his service in Iraq, predominantly on upper chest and upper back. He reported he never had rash symptoms prior to serving in Iraq. The Veteran was assessed with folliculitis. The Board gives probative weight to the Veteran’s lay statements about the onset and continuation of his rash symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (a lay person is competent to report observable symptomatology of an injury or illness). The statements are consistent with his entrance examination being silent for mention of rash symptoms, STR reporting rash and being assessed with folliculitis, and post-service treatment records observing and assessing folliculitis. There is not competent conflicting evidence to support finding the Veteran’s folliculitis is not related to service. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection for folliculitis is granted. 3. Entitlement to a rating in excess of 20 percent for lumbar disability is denied. The Veteran is assigned a 20 percent rating for lumbar disability. He contends a 20 percent rating is not substantial compared to the pain and suffering in his day to day activities. See July 2008 statement. The Board remanded the above claim in February 2020 for an examination to determine the current severity of the Veteran’s lumbar disability. The Veteran failed to RSVP for the examination resulting in the examination being cancelled. See April 2020 SSOC. The Veteran nor his representative provided good cause for the Veteran failing to RSVP for his examination. Therefore, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655. The Veteran’s lumbar disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243, for intervertebral disc syndrome (IVDS). DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is 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.”). The Board finds the preponderance of the evidence is against finding the Veteran’s lumbar spine disability produced forward flexion to 35 degrees, favorable ankylosis, or IVDS with incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least 4 weeks but less than 6 weeks during a 12 month period. A review of the evidence shows at an April 2007 VA examination of the spine, the Veteran reported sharp aching pain from his shoulder blade to his lower back. He reported flare-ups occurring 1 to 2 times per week, which last 8 hours, and result in pain of 9 out of 10. He reported his back pain worsened with prolonged walking, carrying over 40 pounds, bending, and stairs. The Veteran reported he can walk 10 to 15 minutes before feeling it in his back. Range of motion testing showed forward flexion to 45 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees. The clinician opined that pain would cause an additional loss of 10 degrees forward flexion with repetitive use. At a June 2009 VA examination, the Veteran reported an increase in back pain caused difficulty bending. The Veteran reported flare-ups happen 2 times per week, last half an hour, and require he lay in bed. Range of motion testing showed forward flexion to 90 degrees, extension to 10 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees. At a March 2010 VA examination, the Veteran reported progressive pain and stiffness since the last examination. The Veteran described weekly flare-ups that last for hours. He reported back pain was aggravated by prolonged walking, bending, twisting, lifting/carrying, neck twisting, and cold weather. He reported partial relief with activity modification and rest. Range of motion testing showed forward flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees. Under the Formula for Rating IVDS Based on Incapacitating Episodes, to warrant a rating in excess of 20 percent, the evidence must show IVDS with incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least 4 weeks but less than 6 weeks during a 12 month period. 38 C.F.R. § 4.71a, Note 1. The probative evidence of record does not show IVDS with incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least 4 weeks. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a rating in excess of 20 percent, the evidence must show forward flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. The probative evidence of record shows forward flexion at worst to 35 degrees, when considering pain with repetitive use. There was no evidence of ankylosis. The Board acknowledges the Veteran’s lay reports of increased lumbar pain with bending, prolonged walking, lifting, twisting, stairs, dressing, and cold weather. However, even considering the Veteran’s lay reports, the evidence is against finding the degree of additional limitation would produce forward flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. The Board specifically requested examinations to determine whether the Veteran’s lumbar spine disability increased in severity and whether his range of motion was additionally limited by pain, weakened movement, excess fatigability, diminished endurance, or incoordination during flare-ups or repeated use over time. Unfortunately, as the Veteran did not RSVP for the examination, the request for examination was cancelled. As such, the Board can only consider the evidence of record. In a September 2020 representative brief, the Veteran’s representative generally raised the issue of referral for extraschedular consideration. The representative provided no further explanation or argument as to why referral for extraschedular consideration was warranted. The Board finds the schedular evaluation contemplates the Veteran’s level of disability and symptomatology, and extraschedular referral is not warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also 38 C.F.R. § 3.321(b)(1). Based on the foregoing, the preponderance of the evidence is against a rating in excess of 20 percent for lumbar disability. REASONS FOR REMAND 1. Service connection for cervical spine disability remanded. 2. Service connection for bilateral knee disability is remanded. First, the claims file indicates that in addition to the Veteran’s verified active duty service from November 1983 to October 1988 and November 2004 to July 2006, the Veteran served active duty for training (ACDUTRA), and active duty for special work (ADSW). The Board requests verification of his periods of active duty, ACDUTRA, and ADSW. For all periods of ADSW, verify whether the period of ADSW was for operational support. Next, the February 2020 Board remand requested an examination and nexus opinion for the Veteran’s cervical spine and bilateral knee disabilities. As noted above, the Veteran did not RSVP for examinations, resulting in the cancellation of the examinations. As current cervical and bilateral knee disabilities were already established by the record, the Board requests the nexus opinions still be provided. See March 2010 VA cervical examination and December 2008 bilateral knee x-ray. The matters are REMANDED for the following action: 1. Verify the Veteran’s periods of active duty, active duty for training (ACDUTRA), and active duty for special work (ADSW). For all periods of ADSW, verify whether the period of ADSW was for operational support. 2. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran’s cervical spine disability. (a.) Identify any cervical disability found during the appeal period. (b.) For each cervical disability identified, is it at least as likely as not (50 percent or greater probability) the disability began during active service or is related to active service? The clinician should consider the Veteran’s contention that his cervical spine disability originated in service, resulting from strenuous in-service duties and wearing body armor. See August 2008 statement and March 2010 statement. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 3. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran’s bilateral knee disability. (a.) Identify any knee disability found during the appeal period. (b.) For each knee disability identified, is it at least as likely as not (50 percent or greater probability) the disability began during active service or is related to active service? The clinician should discuss the numerous STR relating to the knees during active service. The clinician should consider the Veteran’s lay statements that his knee pain began while deployed to Iraq, resulting from banging his knees entering/exiting military vehicles and falling in slippery and muddy areas. See December 2009 statement. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, Associate 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.