Citation Nr: 21003758 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-09 622A DATE: January 22, 2021 ORDER The claim for an initial 60 percent rating for dermatographism, but not higher, is granted. The claim for a higher initial rating for right knee retropatellar pain syndrome with limitation of extension, currently rated as 10 percent disabling prior to December 23, 2019 and 40 percent disabling thereafter is denied. The claim for a separate rating of 10 percent, but not higher, for right knee instability throughout the initial claims period is granted. The claim for a higher initial rating for bilateral pes planus with bilateral plantar fasciitis, currently rated as 10 percent disabling prior to December 23, 2019 and 50 percent disabling thereafter is denied. FINDINGS OF FACT 1. The Veteran’s dermatographism manifests constant itching with urticaria requiring treatment with constant systemic antihistamine therapy. 2. Prior to December 23, 2019, the Veteran’s right knee manifested painful restricted motion with flexion limited at most to 120 degrees and extension to -10 degrees; there was no ankylosis or impairment of the tibia or fibula or meniscus. 3. From December 23, 2019, the Veteran’s right knee manifested painful restricted motion with flexion limited at most to 105 degrees and extension to -30 degrees; there was no ankylosis or impairment of the tibia or fibula or meniscus. 4. Throughout the initial claims period, the Veteran’s right knee manifested instability that most nearly approximates slight. 5. Prior to December 23, 2019, the Veteran’s bilateral pes planus with bilateral plantar fasciitis most nearly approximated moderate flatfoot with slight forefoot and midfoot malalignment correctable with manipulation, pain on manipulation and use of the feet, without swelling and not requiring the use of support or special shoes. 6. From December 23, 2019, the Veteran’s bilateral pes planus with bilateral plantar fasciitis most nearly approximated pronounced flatfoot with extreme tenderness not relieved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 60 percent, but not higher, for dermatographism are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. The criteria for a higher initial rating for right knee retropatellar pain syndrome with limitation of extension, currently rated as 10 percent disabling prior to December 23, 2019 and 40 percent disabling thereafter, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5258-5263. 3. The criteria for a separate rating of 10 percent, but not higher, for right knee instability throughout the initial claims period are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a higher initial rating for bilateral pes planus with bilateral plantar fasciitis, currently rated as 10 percent disabling prior to December 23, 2019 and 50 percent disabling thereafter, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5276, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to September 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2017 at the RO. A transcript of the hearing is associated with the claims file. This case was previously before the Board in September 2017 and October 2019 when it was remanded for additional development. The case has now returned to the Board for further action. In an October 2020 rating decision, increased disability evaluations were granted for the service-connected skin and foot disabilities currently on appeal effective from December 23, 2019. The rating decision noted that the grant of these higher ratings constituted a complete grant of the benefits sought on appeal. A claimant is generally presumed to be seeking the maximum evaluation available under law. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran did not limit or withdraw his appeal following the grant of higher ratings during a later period of the appeal, and the claims for increased initial ratings for his skin and foot disabilities therefore remain before the Board. Additionally, the October 2020 rating decision on appeal recharacterized the Veteran’s right knee retropatellar pain syndrome with limitation of extension as shin splints. This appears to have been in error. Shin splints were diagnosed at a December 2019 VA examination, but the examiner also noted that the Veteran’s shin splints occurred during active duty basic training and have not been present since. Furthermore, the examiner opined that the Veteran’s shin splints were “unrelated to right knee retropatellar pain syndrome.” The Veteran is not service connected for shin splints and the Board will therefore continue to refer to the disability on appeal as a “right knee disability” and “right knee retropatellar pain syndrome with limitation of extension.” Increased Rating Claims 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 1. Entitlement to a higher initial rating for dermatographism, currently rated as 10 percent disabling prior to December 23, 2009 and 60 percent disabling thereafter. Service connection for dermatographism (claimed as recurrent urticaria) was granted in the January 2010 rating decision on appeal. An initial 10 percent rating was assigned effective September 13, 2009. In October 2020, an increased 60 percent evaluation was granted from December 23, 2019. The Veteran contends that a higher initial rating is warranted as his skin disability is productive of constant itching and hives that have required constant systemic treatment since active service. The Veteran’s dermatographism is not specifically listed in the current VA rating schedule contained in 38 C.F.R. Part 4. Unlisted conditions are rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran’s skin condition was originally rated by analogy under Diagnostic Code 7825 pertaining to urticaria. The October 2020 rating decision granting a higher rating for the disability changed the Diagnostic Code used to evaluate the disability to 7806 for dermatitis or eczema. VA amended the criteria for rating skin disabilities twice during the pendency of this claim effective from October 23, 2008 and from August 13, 2018. Regarding the 2008 regulatory change, Diagnostic Code 7806 was not altered and the previous and post-2008 versions of the diagnostic code are identical. With respect to the most recent change, these new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In this case, as the Veteran’s appeal was pending at the time of the regulatory change, both versions of the Diagnostic Code 7806 apply during the claims period. The Board finds that a maximum 60 percent evaluation is warranted for the Veteran’s dermatographism throughout the initial claims period under the current version of Diagnostic Code 7806. As the Veteran’s claim for an increased rating was pending at the time of the regulatory change, the current version of Diagnostic Code 7806 applies throughout the initial claims period and is more favorable to the Veteran. Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a maximum 60 percent rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. The disability could also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the Veteran’s predominant disability is dermatitis or similar widespread involvement of the skin. The record is entirely negative for medical evidence of scarring related to the Veteran’s disability, and he has never reported scarring due to the service-connected skin condition. Moreover, although the Veteran has reported having some embarrassment related to his skin condition, there is no medical or lay evidence of actual disfigurement of the head, face, or neck as defined by VA related to the skin condition. The May 2009 and December 2019 VA examiners also specifically found that the Veteran did not have any disfigurement related to his dermatographism, and no treating physician has identified disfigurement as a manifestation of the disability. Thus, it is clear that the predominant disability resulting from the Veteran’s skin condition most nearly approximates dermatitis and the Board will rate the condition accordingly under the Diagnostic Code 7806. The Board finds that a maximum 60 percent evaluation is appropriate for the Veteran’s dermatographism under the current version of Diagnostic Code 7806. Treatment records and the May 2009 and December 2019 VA examinations establish that the Veteran’s condition has been constantly treated with systemic antihistamines throughout the initial claims period. A maximum 60 percent evaluation is assigned for constant or near-constant systemic therapy. Although systemic antihistamines are not included on the list of examples of systemic therapy contained in the diagnostic code, the code makes clear that the list is not exhaustive. The 2009 and 2019 VA examiners specifically characterized the Veteran’s antihistamine treatment as systemic and the Board therefore finds that the criteria for a 60 percent evaluation are met throughout the initial claims period. This is the maximum schedular rating under Diagnostic Code 7806, there is no basis to award a higher evaluation. The current 60 percent evaluation contemplates the Veteran’s continuous use of antihistamine medication, as well as characteristic lesions affecting at least 40 percent of the entire body. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for a higher disability evaluation, including Diagnostic Code 7825 (the code used previously used to rate the Veteran’s skin disability). However, Diagnostic Code 7825 does not provide for a rating higher than 60 percent and the evidence does not reflect that the Veteran would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The Board therefore finds that an initial 60 percent evaluation is warranted for the service-connected dermatographism, but not higher, and the claim is granted to this extent. 2. Entitlement to a higher initial rating for a right knee disability, currently rated as 10 percent disabling prior to December 23, 2019 and 40 percent disabling thereafter. Service connection for right knee retropatellar pain syndrome was granted in the January 2010 rating decision on appeal with an initial 10 percent evaluation assigned effective September 13, 2009. More recently, in October 2020, an increased 40 percent evaluation was awarded for the right knee disability effective December 23, 2019. As noted above, the October 2020 rating decision also recharacterized the service-connected right knee disability to shin splints, but this change in the description of the disability appears to have been in error. The Veteran contends that higher initial ratings are warranted for his right knee condition as it gives way, is constantly painful, and limits his ability to walk for prolonged periods and engage in other activities. The Board finds that higher initial ratings are not warranted for the Veteran’s right knee disability based on limitation of motion under 38 C.F.R. § 4.59 and Diagnostic Codes 5260 and 5261; however, a separate 10 percent rating is warranted for right knee instability throughout the initial claims period under Diagnostic Code 5257. The Board will first address whether higher ratings are warranted based on limitation of motion. Prior to December 23, 2019, the Veteran’s right knee disability is rated as 10 percent disabling under Diagnostic Code 5260 for limitation of flexion. However, in the January 2010 rating decision the AOJ found that the Veteran’s right knee was productive of noncompensable limited motion and a 10 percent rating was assigned for “objective evidence of painful motion.” It therefore appears that the initial 10 percent evaluation assigned the Veteran’s right knee was granted in accordance with 38 C.F.R. § 4.59 which provides for a maximum 10 percent evaluation (“minimum compensable rating”) for actually painful joins, even when the joint does not manifest compensable limitation of motion under the relevant rating criteria. During the period prior to December 23, 2019, the Veteran’s right knee manifested limitation of motion that most nearly approximates flexion limited to 120 degrees and extension limited to -10 degrees. These range of motion measurements were reported by a May 2009 VA contract examiner with consideration of the point where pain began during testing. Flexion limited to 120 degrees is noncompensable under Diagnostic Code 5260, while extension limited to -10 degrees is contemplated by a 10 percent evaluation under Diagnostic Code 5261. Although the AOJ found in the January 2010 rating decision that the Veteran manifested noncompensable range of motion, including full extension to 0 degrees, it appears the AOJ did not consider the VA examiner’s reports that the Veteran experienced pain during range of motion testing at -10 degrees of extension. With consideration of functional factors (including the point at which pain began during testing and the examiner’s finding that there was no additional loss of motion with repetitive testing) the Board finds that the Veteran’s extension was limited to -10 degrees prior to December 23, 2019. This degree of limited extension is contemplated by a 10 percent rating under Diagnostic Code 5261. In any event, whether rating the Veteran’s disability under 38 C.F.R. § 4.59 or Diagnostic Code 5261, it is clear that an initial rating higher than 10 percent based on limitation of motion is not appropriate prior to December 23, 2019. During the period beginning December 23, 2019, the right knee disability is currently rated as 40 percent disabling under Diagnostic Code 5261 for limitation of extension. Range of motion was most limited during this period at a December 2019 VA examination, when flexion was measured to 105 degrees and extension was restricted to -30 degrees. The Board notes that these findings consider functional factors; the examiner found that while the Veteran could fully extend his knee to 0 degrees, he experienced the onset of pain at -30 degrees. Therefore, the Board will consider extension limited to 30 degrees. Similarly, while flexion was possible to 115 degrees, the examiner opined that flexion was further limited to only 105 degrees with repeated use over time. The Board therefore finds that the Veteran’s right knee manifests flexion limited to 105 degrees and extension limited to -30 degrees during the period beginning December 23, 2019. Flexion to 105 degrees is noncompensable under Diagnostic Code 5260, while extension limited to -30 degrees is contemplated by the current 40 percent rating under Diagnostic Code 5261. The Board has considered all relevant functional factors and the Veteran’s statements regarding functional impairment in determining the range of motion measurements reported above. The flexion and extension demonstrated by the Veteran during the May 2009 and December 2019 VA examinations was reported with consideration of the point where pain began during testing and with consideration of additional loss of motion following repeated use over time. Furthermore, the Veteran’s reports that he experiences knee pain with movement that affects his ability to walk and stand for prolonged periods are contemplated by the ratings assigned the right knee disability, including the staged ratings for limitation of motion (which considers loss of function over time with repeated use) and the separate rating for instability discussed below. Thus, even with consideration of all relevant functional factors, the Board finds that the Veteran’s knee manifestations do not most nearly approximate limitation of motion that is contemplated by any increased ratings during the initial claims period. Although higher ratings are not warranted under the criteria pertaining to limitation of motion, the Board finds that a separate 10 percent rating is warranted for right knee instability throughout the initial claims period. Diagnostic Code 5257, pertaining to recurrent subluxation or lateral instability, provides for a 10 percent rating for slight lateral instability or recurrent subluxation, a 20 percent rating for moderate lateral instability or recurrent subluxation, and a maximum 30 percent rating for severe lateral instability or recurrent subluxation. 38 C.F.R. § 4.71a. The Veteran has consistently complained of his right knee “giving way,” and even causing a fall and left knee injury in January 2013, and the December 2019 VA examiner noted a history of slight recurrent subluxation in the right knee. Although the knee has consistently been stable on physical evaluation at the VA Medical Center (VAMC) and at the May 2009 and December 2019 VA examinations, in light of the Veteran’s competent and credible reports of instability, the Board finds that a separate 10 percent evaluation is warranted under Diagnostic Code 5257. A higher rating is not possible as there is no objective medical evidence of instability during the claims period and the December 2019 VA examiner characterized the Veteran’s history of knee subluxation as no more than slight. The Board finds that the medical evidence is more probative than the Veteran’s lay statements regarding the severity of the right knee instability. Therefore, a rating higher than 10 percent instability of the right knee is not warranted at any time during the initial claims period. Finally, the Board finds that there is no other schedular basis for granting higher or other separate ratings. There is no evidence of a meniscal condition, impairment of tibia or fibula, genu recurvatum, or ankylosis as the Veteran has maintained some useful motion of the right knee. The medical and lay evidence does not establish any pathology associated with these other knee conditions and Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application in this case. The Board therefore finds that additional separate or higher ratings are not warranted and the claim for an increased initial rating is granted only to the extent discussed above. 3. Entitlement to a higher initial rating for bilateral pes planus with bilateral plantar fasciitis, currently rated as 10 percent disabling prior to December 23, 2019 and 50 percent disabling thereafter. Service connection for bilateral pes planus with bilateral plantar fasciitis was granted in the January 2010 rating decision on appeal. An initial 10 percent evaluation was assigned effective September 13, 2009. In an October 2020 rating decision, an increased 50 percent evaluation was granted for the bilateral foot disability effective December 23, 2019. The Veteran’s bilateral foot disability is therefore rated as 10 percent disabling prior to December 23, 2019 and 50 percent disabling thereafter. The Veteran contends that a higher initial rating is warranted as his pes planus and plantar fasciitis manifest pain that prevents him from walking and causes his feet to spasm. The Veteran’s pes planus with plantar fasciitis is rated under Diagnostic Code 5276 pertaining to acquired flatfoot. Under this diagnostic code, moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. The Board finds that a rating higher than 10 percent is not warranted for the Veteran’s foot disability prior to December 23, 2019. Service treatment records document diagnoses of bilateral pes planus and plantar fasciitis with moderate-severe foot pain with activity and walking in August 2008. Upon VA examination in May 2009, the Veteran’s feet manifested slight tenderness to the plantar surface and a slight degree of valgus and forefoot/midfoot malalignment that were both corrected with manipulation. The VA contract examiner also found that the Veteran did not experience foot swelling, any actual foot deformity, and normal alignment of the Achilles tendon. Although the Veteran reported that he had previously tried shoe inserts and muscle relaxers that did not help his feet, the VA contract examiner determined that the Veteran’s condition at the time did not require any type of support with his shoes. Based on the characterization of the Veteran’s symptoms as no more than “moderate-severe” or “slight,” as well as the lack of deformity, abnormality of the Achilles tendon, or characteristic callosities, the Board finds that the Veteran’s foot condition prior to December 23, 2019 most nearly approximates the criteria contemplated by the current 10 percent evaluation for a moderate disability under Diagnostic Code 5276. The Board has also considered the Veteran’s statements and testimony during this period, but finds that his lay reports of symptoms are contemplated by the current 10 percent evaluation. In September 2010, the Veteran reported that he was not able to walk far without pain in his feet which would also spread to his calves and cause his toes to curl. He testified in March 2017 that he did not wear orthotics or inserts, did not require special shoes, and did not seek treatment with a podiatrist on a regular basis. The Veteran’s foot disability is currently rated as 10 percent disabling Diagnostic Code 5276. This evaluation is consistent with a moderate bilateral flatfoot disability and specifically contemplates pain on manipulation and use of the feet. The Board therefore finds that the Veteran’s lay reports of symptoms are considered by the current initial disability rating and a higher rating is not warranted. During the period beginning December 23, 2019, the Veteran’s bilateral pes planus with bilateral plantar fasciitis is rated as 50 percent disabling. This is the maximum schedular evaluation under Diagnostic Code 5276 and a higher rating is not possible. A rating in excess of 50 percent is also not possible under any other criteria pertaining to the foot. The Board therefore finds that an evaluation higher than 50 percent is not warranted for the period dating from December 23, 2019. As a final matter, the Board notes that the service-connected foot disability is characterized as bilateral pes planus with bilateral plantar fasciitis. Plantar fasciitis is not a disability that is specifically listed in the criteria pertaining to the feet and is rated by analogy with the Veteran’s bilateral pes planus under Diagnostic Code 5276. Therefore, the Board must consider whether a separate rating is appropriate for the Veteran’s plantar fasciitis. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must consider assigning separate ratings under analogous diagnostic codes when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for a condition listed in the rating schedule. See Scott v. Wilkie, 920 F. 3d 1375, 1379 (2019); see also Yancy v. McDonald, 27 Vet. App. 484 (2016) and Copeland v. McDonald, 27 Vet. App. 333 (2015). However, the consideration of whether a separate rating is warranted (to include under Diagnostic Code 5284 for foot injuries) requires the presence of “distinct manifestations.” Id. In this case, there is no medical or lay evidence that the Veteran’s plantar fasciitis manifests symptoms that are separate and distinct from the associated pes planus to warrant a separate rating. The Veteran has reported experiencing foot pain that impairs his ability to walk, but has not distinguished between his pes planus and plantar fasciitis when describing the impact of his foot conditions. Similarly, there is no medical evidence of distinct symptoms associated with plantar fasciitis—the 2009 and 2019 VA examiners identified the presence of pain on manipulation and use, collapsed bilateral foot arches, a slight malalignment of the forefoot/midfoot, and symptoms that are not relieved by orthopedic shoes and appliances. These symptoms are not specific to the Veteran’s plantar fasciitis alone and are contemplated by the current ratings in place under Diagnostic Code 5276. As the Veteran’s plantar fasciitis does not have distinct manifestations, a separate rating for the unlisted condition is not appropriate. The Veteran’s service-connected bilateral pes planus with bilateral plantar fasciitis therefore warrants an initial rating of 10 percent prior to December 23, 2019 and a maximum 50 percent rating thereafter. The claim for an increased rating is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.