Citation Nr: 21003625 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-09 699 DATE: January 22, 2021 ORDER An initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied. A rating in excess of 10 percent for the residuals of a right great toe injury is denied. An initial compensable rating for residual scar of the right great toe and bilateral knees is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PFB does not affect at least 20 percent of the entire body or exposed areas, does not require systemic therapy, and does not result in scarring or disfigurement. 2. For the entire appeal period, the Veteran’s residuals of a right great toe injury do not more nearly approximate a moderately severe foot injury. 3. At no point during the appeal period were the Veteran’s residual scars of the right great toe and bilateral knees deep and nonlinear, painful, or unstable, affect an area or areas of 144 square inches (929 sq. cm), or result in any disabling effects. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7899-7806. 2. The criteria for a rating in excess of 10 percent for the residuals of a right great toe injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 3. The criteria for an initial compensable rating for residual scar of the right great toe and bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2012 by a Regional Office of the Department of Veterans Affairs (VA). In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2019, the Board remanded the claims on appeal, as well as claims for service connection for bilateral hip and knee disorders, for additional development. While on remand, a September 2020 rating decision awarded service connection for degenerative arthritis of the right and left hips and osteoarthritis of the right and left knees, thereby extinguishing the related appeals. Such rating decision also recharacterized the Veteran’s service-connected scar of the right great toe to include those of the bilateral knees and continued the noncompensable rating. The increased rating claims now return for further appellate review and, in light of the Agency of Original Jurisdiction’s (AOJ’s) actions, the Board has likewise recharacterized the Veteran’s scar disability to include those affecting his bilateral knees. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial rating in excess of 10 percent for PFB. For the entire appeal period stemming from February 14, 2012, the date of service connection, the Veteran’s PFB has been assigned a 10 percent rating pursuant to Diagnostic Code 7899-7806. In this regard, as PFB is not listed in the rating schedule, such has been rated by analogy to dermatitis under Diagnostic Code 7806. Prior to August 13, 2018, under Diagnostic Code 7806, a 10 percent evaluation is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118. As of August 13, 2018, Diagnostic Code 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a 10 percent rating where there is 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. A 30 percent rating is assigned where there is 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. A 60 percent rating is warranted where there are 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. Id. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is 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.” With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the United States Court of Appeals for Veterans Claims (Court) in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment 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.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. As the Veteran has been assigned a 10 percent rating throughout the entirety of the rating period, in order to warrant the assignment of the next higher rating of 30 percent pursuant to Diagnostic Code 7806, the evidence must show that his PFB involves 20 to 40 percent of the entire body or exposed areas affected, or systemic therapy for a total duration of 6 weeks or more, but not constantly, over the past 12 month period. In this regard, the criteria for a 30 percent rating in effect before and after August 2018 is largely identical, with the exception of identifying other forms of systemic therapy, in addition to corticosteroids, that could qualify the claimant for a higher rating. However, as set forth below, the evidence of record does not show that the Veteran’s PFB affects a requisite portion of his body, or requires systemic therapy, so as to warrant the assignment of a 30 percent rating. Specifically, during the appeal period, the Veteran underwent VA dermatological examinations in October 2012 and January 2020, during which his PFB as assessed as affecting 5 to 20 percent of his entire body and exposed areas and 0 percent of his body and exposed areas, respectively. As such, an increased rating on the basis of how much of his body or exposed areas are affected by his PFB is not warranted. As to whether the Veteran may be entitled to an increased rating based on his use of a systemic therapy to treat his PFB, the Board notes that he reported continual use of a cortisone cream during his October 2012 VA examination and March 2019 Board hearing. However, such reports are contradicted by the Veteran’s treatment records. Specifically, such show the use of non-prescription antifungal medications and hydrocortisone to treat skin disorders other than PFB, namely eczema and tinea corpus and pedis. Nonetheless, even assuming that the Veteran used such creams to treat his PFB, the Board finds that such treatment is not systemic in nature as such were only administered to his face and neck, i.e., the areas affected by PFB. Therefore, such topical corticosteroid treatment would not be used on a scale sufficient to affect the entire body and thus qualify as systemic. Based on the foregoing, a higher rating pursuant to Diagnostic Code 7806 is not warranted. The Board has also considered whether a higher or separate rating is warranted under Diagnostic Codes 7800 through 7805, which assign ratings based on scarring or disfigurement. However, as the clinicians who conducted the Veteran’s October 2012 and July 2020 VA dermatological examinations stated that there was no evidence of such scarring or disfigurement, such Diagnostic Codes are inapplicable. In sum, given the lack of evidence reflecting that the Veteran treats his PFB with systemic therapy and, given the clinical assessments of the scope of his PFB on his entire body and exposed area, there is no basis for awarding a higher rating for such disability. 2. Entitlement to a rating in excess of 10 percent for the residuals of a right great toe injury. The appeal period before the Board begins on February 14, 2012, the date VA received the Veteran’s claim for an increased rating for his residuals of a right great toe injury, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability has been assigned a 10 percent rating pursuant to Diagnostic Code 5284, which pertains to foot injuries. Pursuant to Diagnostic Code 5284, the Veteran’s current 10 percent rating is for a moderate foot injury, and the next higher rating of 20 percent is assigned where there is a moderately severe foot injury. A maximum rating of 30 percent is assigned where there is a severe foot injury. Further, a Note following the Diagnostic Code indicates that when the foot injury is accompanied by actual loss of use of the foot, a 40 percent rating should be assigned. 38 C.F.R. § 4.71a. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Turning to the evidence of record, the Veteran’s VA treatment records document his reports of toe pain. Also, during his October 2012 VA examination, the Veteran reported experiencing right great toe pain that can sometimes make it difficult to wear shoes and tenderness. The examiner noted that the Veteran had degenerative changes in the right great toe and found that such disability limited his ability to climb stairs, bend, and squat. Based on such symptomatology and resulting limitations, he assessed the Veteran’s residual foot injury as moderate in severity. A December 2012 VA treatment record reflects a finding of moderate swelling over the right great toe medial MTP joint, and an August 2013 treatment record notes a finding of limitation of right great toe motion. During his January 2020 VA examination, the Veteran reported experiencing constant great toe pain of varying severity, currently reported as 3/10. The Veteran did not report experiencing any flare-ups of his right great toe disability, but reported that such disorder slowed his walking speed. The VA examiner noted the presence of right great toe degenerative changes, pain on weight-bearing and nonweight-bearing, disturbance of locomotion, and interference with standing. She further observed that such disability interfered with the Veteran’s ability to walk and stand. Based on such symptomatology and resulting limitations, the examiner assessed the Veteran’s residual right great toe injury as mild in severity. Based on the foregoing, the Board finds that the evidence does not show that the Veteran’s right great toe disability more nearly approximate a moderately severe foot injury, thereby warranting the assignment of the next higher rating of 20 percent. In this regard, the Board finds that, while such disability results in degenerative joint disease with swelling and limitation of motion, the Veteran’s functional impairment, which affects, but does not preclude, his ability to climb stairs, bend, squat, walk and stand, results primarily from his subjective complaints of pain and tenderness. Furthermore, the October 2012 and January 2020 VA examiners considered the totality of the Veteran’s subjective complaints, objective findings, and resulting impairment, and found that such disability resulted in no more than a moderate foot injury. Therefore, the Board finds that, as the Veteran’s right great toe disability does not more nearly approximate a moderately severe foot injury, a rating in excess of 10 percent is not warranted. In reaching such determination, the Board acknowledges the Veteran’s subjective symptoms and resulting functional impairment, but finds that such do not provide a basis for awarding a rating in excess of 10 percent, especially in light of the fact that that the VA examiners, who are medical professionals with the expertise necessary to assess the overall severity of his right great toe disability in light of the rating criteria, found that such disability resulted in no more than a moderate foot injury and, in fact, the January 2020 VA examiner found that was, at most mild in nature. See Mitchell, supra (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Furthermore, such symptomatology and resulting functional impairment are contemplated in the currently assigned 10 percent rating. 38 C.F.R. § 4.59 (painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). The Board has also considered whether a higher or separate rating is warranted under any other potentially applicable Diagnostic Code. In this regard, while the Veteran has a diagnosis of right great toe degenerative joint disease, his painful, limitation of motion is contemplated by the current assigned 10 percent rating under Diagnostic Code 5284 and a higher rating is not warranted under Diagnostic Code 5003, pertinent to the evaluation of degenerative arthritis, as such does not involvement more than one minor joint group. Furthermore, the evidence does not show that the Veteran’s right great toe disability results in any additional toe or foot disabilities. Thus, higher or separate ratings are not warranted under Diagnostic Codes 5276 to 5283. 3. Entitlement to an initial compensable rating for residual scar of the right great toe and bilateral knees. For the entire appeal period stemming from February 14, 2012, the date of service connection, the Veteran’s residual scar of the right great toe and bilateral knees has been assigned noncompensable rating pursuant to Diagnostic Code 7805, which provides that any disabling effect(s) associated with scars not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. In this regard, Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. However, as the Veteran’s residual scars affect his right great toe and bilateral knees, such Diagnostic Code is inapplicable. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. In this regard, a Note indicates that a deep scar is one associated with underlying soft tissue damage. Such Diagnostic Code provides for a compensable rating of 10 percent where such scar(s) affects an area or areas of at least 6 square inches (39 sq. cm.). Higher ratings are available for greater areas affected by such scar(s). In the instant case, the evidence does not show that the Veteran’s right great toe and bilateral knee scars are deep and nonlinear. Specifically, the October 2012 VA examiner indicated that all of the Veteran’s scars were linear and not deep. Additionally, the January 2020 VA examiner found that his right great toe scar was stable and did not result in underlying soft tissue damage, and his bilateral knee scars were not discernable upon examination. Thus, a higher or separate rating is not warranted under Diagnostic Code 7801. Diagnostic Code 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. A Note indicates that a superficial scar is one not associated with underlying soft tissue damage. Only a single 10 percent rating is available where such scar(s) affect an area or areas of 144 square inches (929 sq. cm) or greater. In the instant case, while the record demonstrates that the Veteran’s right great toe and bilateral knee scars are linear, such do not affect at least 929 sq. cm. so as to warrant a compensable rating under such Diagnostic Code. In this regard, the October 2012 VA examiner indicated that the Veteran’s scars measured 6 cm (right great toe), 0.9 cm, 0.8 cm, and 0.9 cm (right knee), 0.8 cm, 0.9 cm, and 0.8 cm (left knee). Additionally, in January 2020, it was noted that the Veteran’s right great toe scar measured 4.5 cm by 0.5 cm, affecting an area of 2.25 square cm (right great toe) and his bilateral knee scars were not discernable upon examination. Thus, as such scars do not affect an area or areas of 144 square inches (929 sq. cm) or greater, a higher or separate rating is not warranted under Diagnostic Code 7802. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. at Note (3). In the instant case, the October 2012 VA examiner found that the Veteran’s right great toe and bilateral knee scars were not painful or unstable. Similarly, the January 2020 VA examiner found that his right great toe scar was not painful or unstable, and indicated that his bilateral knee scars were not discernable on examination. However, the Board acknowledges the Veteran’s report at the March 2019 Board hearing that he experiences pain and puffing of his right great toe scar. However, clinical assessments of the Veteran’s right great toe scar have failed to reveal that such is painful on examination. Moreover, as the Veteran’s VA treatment records reflect that his right great toe is painful and occasionally swells, he could be erroneously attributing the known symptoms of his right great toe disability with his superficial surgical scar from his 1980 surgery. Accordingly, the Board accords greater probative weight to the October 2012 and January 2020 VA examiner’s conclusions as such were based on the Veteran’s reported symptomatology and contemporaneous clinical assessments than his subjective reports at the March 2019 Board hearing. Consequently, the Board finds that a higher or separate rating is not warranted under Diagnostic Code 7804. Finally, as the October 2012 and January 2020 VA examiner found that the Veteran’s right great toe and bilateral knee scars did not result in limitation of function or affect his ability to work, a compensable rating is not warranted under Diagnostic Code 7805. Other Considerations The Board has also considered whether staged ratings under Fenderson, supra, and Hart, supra, are appropriate for the Veteran’s service-connected PFB, right great toe disability, and right great toe and bilateral knee scars; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, 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 claims for increased ratings for PFB, right great toe disability, and scars of the right great toe and bilateral knees, the benefit of the doubt doctrine is inapplicable in such regard. Therefore, his claims for increased ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.