Citation Nr: 21005064 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 883 DATE: January 28, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis is denied. Entitlement to an initial compensable rating for eczema bilaterally of the shins is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s bilateral plantar fasciitis is manifested by moderate pain of the heels and arches of the feet during periods of prolonged standing and walking. 2. During the period on appeal, the Veteran’s eczema bilaterally of the shins is manifested by less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276 (2019). 2. The criteria for a compensable disability rating for eczema of the bilateral shins are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active service from August 1989 to February 2012. In August 2020, the Board remanded the Veteran’s claims for additional development. The Board finds that there was substantial compliance with the remand directives for the issues on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A 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). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14 (2019). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 (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. 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. 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. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran’s bilateral plantar fasciitis rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board concludes that this is the most appropriate code for rating this impairment. He does not have a “foot injury” as contemplated by Code 5284. Other codes either do not apply or do not provide a basis for an increase.. 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, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction 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. The Veteran’s eczema of the shins is rated under Diagnostic Code 7806. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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. A 30 percent rating is assigned for 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. A 60 percent rating is assigned for 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. 1. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis The Veteran contends that he is entitled to an initial rating in excess of 10 percent for bilateral plantar fascitis. In a September 2012 rating decision, the Veteran was assigned a noncompensable evaluation for his bilateral plantar fascitis. The assignment of this rating was based on the findings of an April 2012 VA examination which diagnosed bilateral plantar fasciitis with no compensable symptoms. In a December 2019 VA foot conditions examination, the examiner diagnosed the Veteran with bilateral plantar fasciitis. The Veteran reported sharp pinching with tightness of the lateral foot and heel with flare-ups reported twice a month. Pain and extreme tenderness of the feet was noted with no objective evidence of marked deformity or pronation. Weight-bearing falling in line over the medial to the great toes or alteration of the weight-beating was diagnosed as negative. Inward bowing of the achilles tendon was diagnosed as negative with no marked displacement diagnosed. The examiner also noted that the Veteran does not have any foot injuries. Fatigability, weakness, non-weight-bearing pain, and incoordination was diagnosed as negative. The Veteran reported that he did not use assistive devices for his bilateral plantar fasciitis. Concerning functional and occupational limitations, the examiner noted that the Veteran experienced pain in his heels and arches with prolonged walking and standing. A 10 percent initial rating was assigned effective March 1, 2012 based on pain in the feet and the use of orthotics. In an August 2020 VA addendum opinion, the examiner was asked to make a determination as to whether pain could significantly limit functional ability during flare-ups. The examiner reported that he is unable to quantify the degree of range of motion loss for the joint tested as the estimated range of motion is highly variable do to multiple subjective and unmeasurable factors. The examiner noted these factors as the following: severity of pain; weakness; repetitive use; pain medication usage; psychological factors; and individual pain tolerance. He explained that it would be purely speculative to quantify range of motion loss that may or may not occur in during so-called repetitive use testing. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected bilateral plantar fasciitis warrants an evaluation in excess of 10 percent. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to bilateral plantar fascitis as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Review of the record does not provide a basis for granting a rating in excess of 10 percent for the Veteran’s bilateral plantar fasciitis during the appeal period. There is no evidence of severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities which would warrant a 20 percent evaluation for bilateral plantar fasciitis. In summation, the Board finds that the Veteran’s bilateral plantar fasciitis is manifested by pain and extreme tenderness of the hells and arches of the feet during periods of prolonged standing and walking. These findings more so approximate the maintaining of a 10 percent evaluation. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral plantar fascitis. In denying such a rating, 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. 2. Entitlement to an initial compensable rating for eczema bilaterally of the shins The Veteran contends that he is entitled to an initial compensable evaluation for his eczema bilaterally of the shins. In a May 2013 rating decision, the Veteran was assigned a noncompensable evaluation for his eczema bilaterally of the shins. The assignment of this rating was based on the findings of an April 2013 VA examination which diagnosed eczema bilaterally of the shins affecting less than 5 percent of the entire body with no evidence of systemic therapy. In a December 2019 VA skin examination, the examiner diagnosed the Veteran with dermatitis eczema of the shins noting that his eczema covers less than five percent of his total body area. During the examination, the Veteran reported treatment with a topical corticosteroid and oral antihistamines in the past twelve months for six or more weeks, but not constant. The examiner reported that the Veteran was prescribed the topical steroid cream triamcinolone which is not deemed to be a systemic corticosteroid. In an August 2020 VA addendum opinion, the examiner was asked to determine whether the Veteran’s oral and topical medications at any point during the appeal period constitute systemic therapy as the term was used prior to the August 2018 version of diagnosis code 7806. The examiner determined that the Veteran’s use of triamcinolone and hydroxyzine cream is a topical steroid cream for eczema. The examiner also noted that the Veteran’s use of Eucerin is a topical moisturizer that is not a systemic medication. Lastly, the examiner determined that the Veteran’s treatments for his eczema is not considered a systemic corticosteroid therapy and not immunosuppressive drugs. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected eczema bilaterally of the shins warrants a compensable evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to eczema bilaterally of the shins as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Review of the record does not provide a basis for granting a compensable rating under the pre-August 13, 2018 for eczema bilaterally of the shins during the appeal period. There is no evidence of 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. In summation, the Board finds that the Veteran’s eczema bilaterally of the shins is manifested by less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. These findings more so approximate the maintaining of a noncompensable evaluation. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for eczema bilaterally of the shins. In denying such a rating, 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. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.