Citation Nr: 21062805 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-14 705 DATE: October 12, 2021 ORDER For the entire increased disability rating period on appeal, from April 10, 2013, an increased disability rating of 10 percent, but no higher, for service-connected residuals of internal fixation of the left ankle and left fibula (left ankle disability) is granted. REMANDED Entitlement to an increased disability rating in excess of 30 percent for eczema is remanded. FINDING OF FACT During the increased rating period on appeal, from April 10, 2013, the service connected left ankle disability manifested as noncompensable painful limitation of motion. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the entire increased rating period on appeal, from April 10, 2013, the criteria for an increased disability rating of 10 percent, but no higher, for the service-connected left ankle disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1999 to September 2007. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying increased ratings for the issues on appeal. The Veteran testified at a July 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the United States Court of Appeals for Veterans Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability. Id. at 39. In the August 2014 notice of disagreement (NOD), the Veteran advanced seeking a 10 percent disability rating for the service connected left ankle disability, and at the July 2021 virtual Board hearing, the Veteran and representative explicitly testified that the grant of a 10 percent disability rating for the service-connected left ankle disability would satisfy the appeal as to that issue. In the instant decision the Board grants the requested left ankle disability rating appealed for. No subsequent statements by the Veteran indicate a desire to seek a disability rating in excess of 10 percent for the left ankle disability, the evidence does not suggest a rating in excess of 10 percent is warranted, and the Veteran has not indicated that any of the rating criteria for a rating in excess of 10 percent are met or approximated for the left ankle. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a 10 percent disability rating for the service-connected left ankle disability for the entire increased rating period on appeal, which is a complete grant of benefits as to that issue, and remands the issue of an increased disability rating for eczema for additional development, no further discussion of VA's duties to notify and assist is necessary. Finally, the Board notes that the Veteran is currently service connected for dyshidrotic eczema of both hands; however, the Veteran has advanced, and the evidence supports, that since being granted service connection the eczema has spread to other areas of the body. As such, the Board has reframed the issue on appeal as entitlement to an increased disability rating in excess of 30 percent for service-connected eczema. 1. A 10 Percent Increased Disability Rating for the Service-Connected Left Ankle Disability is Granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. For the entire increased rating period from April 10, 2013, the Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected left ankle disability under Diagnostic Code 5271. 38 C.F.R. § 4.71a. As discussed in the introduction, the Veteran seeks a 10 percent disability rating for the increased rating period on appeal. At a July 2021 virtual Board hearing, the Veteran credibly testified to having painful limitation of motion in the left ankle during the entire increased rating period on appeal. Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion. Under this code, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). 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. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the left ankle disability does not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. After a review of all the evidence, lay and medical, the Board finds that for the entire increased rating period on appeal, from April 10, 2013, the criteria for an increased 10 percent disability rating for the left ankle disability by analogy to Diagnostic Code 5003, applying the principles of 38 C.F.R. § 4.59, for painful motion that is manifested to a noncompensable degree, is supported by the evidence in this case. The Veteran underwent a VA ankle examination in May 2013, the examination report for which reflects that the Veteran reported a history of painful flareups in the left ankle with increased activity levels. The May 2013 VA examiner measured a loss of 15 degrees on plantar flexion of the ankle and a loss of 5 degrees on dorsiflexion of the ankle, without objective evidence of painful motion; however, later in the examination report the VA examiner explicitly found that the Veteran had pain in the left ankle. Again, at the July 2021 virtual Board hearing, the Veteran credibly testified to having painful limitation of motion in the left ankle during the entire increased rating period on appeal. Based on the above, and resolving reasonable doubt in favor of the Veteran, for the entire increased rating period from April 10, 2013, the Board finds that the criteria for an increased 10 percent disability rating under Diagnostic Code 5003 have been met for the service-connected left ankle disability. 38 C.F.R. § 4.3, 4.7, 4.71a. Review of the record does not indicate that the Veteran first became entitled to the 10 percent disability rating during the one-year lookback period from April 10, 2012 through April 10, 2013; therefore, an effective date earlier than April 10, 2013 for the grant of the 10 percent increased disability rating is not warranted. 38 C.F.R. § 3.400. The appeal for an increased disability rating for the service-connected left ankle disability is fully granted in this Board decision. As discussed above, in the August 2014 NOD, and in person at the July 2021 virtual Board hearing, the Veteran advanced that a 10 percent disability rating would satisfy the left ankle rating issue on appeal; thus, this is a full grant of the benefit sought on appeal as to the left ankle rating. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the waiver of the remaining aspects of the appeal for an increased disability rating was knowing, intelligent, and consistent with the evidence of record. Because a 10 percent increased disability rating for the left ankle disability was granted for the period from April 10, 2013, the date of claim, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 10 percent. See 38 C.F.R. § 20.205 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of an increased disability rating in excess of 10 percent for the left ankle disability is rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the left ankle increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. An Increased Disability Rating in Excess of 30 Percent for Eczema is Remanded. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During the course of this appeal, including in testimony at the July 2021 virtual Board hearing, the Veteran challenged the adequacy of the September 2013 and October 2018 VA skin examinations on the basis that the examinations were not conducted during a flare-up of the service-connected eczema. Due to the challenges of scheduling a VA skin examination during such a flare-up, and considering the Veteran's experience as a firefighter, the Veteran was asked to submit a "rule of nines" chart sketching out the body areas affected by the eczema as a way of applying his lay testimony regarding skin symptoms during flareups to the rating schedule criteria, to see if a higher rating percentage could be granted based on the competent lay testimony of symptoms during flareups. The Veteran is competent to report which areas of his body are affected by a skin disorder when there are flareups. The Veteran submitted the requested "rule of nines" chart in July 2021. While some of the percentages provided by the Veteran appear consistent with the other lay and medical evidence of record, including his hearing testimony, percentages indicated for the torso and legs show a larger body percentage than might be expected based on the other evidence of record. As such, the Board will remand for an addendum opinion that considers the Veteran's "rule of nines" eczema flare-up chart in the context of other medical findings and reports of symptoms and the nature of the skin disorder. Further, the reports from the September 2013 and October 2018 VA skin examinations reflect that during the entire increased rating period on appeal, the Veteran has been in constant or near-constant use of triamcinolone cream, which is a topical corticosteroid. For the purposes of evaluating the criteria under Diagnostic Code 7806, effective prior to August 31, 2018, several court cases have addressed the meaning of "systemic" and "topical." In 2016, the Court held, in Warren v. McDonald, 28 Vet. App. 194 (2016), that "[c]ompensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs," directly applying the meaning assigned to the phrase "such as" as was explained in Mauerhan v. Principi. See 16 Vet. App. 436, 442 (2002) (finding that "[t]he use of the term 'such as' means 'for example' or 'like or similar to'"). Therefore, the Board must determine whether a given treatment is "like" a corticosteroid or other immunosuppressive drug in determining whether the treatment constitutes a systemic therapy to warrant a higher rating. See id. In July 2017, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued an opinion in Johnson v. Shulkin, 862 F.3d 1351 (2017), finding that the use of topical corticosteroids did not automatically equate to systemic therapy because the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7806, distinguished between systemic and topical therapy. The Federal Circuit determined that "a topical corticosteroid could be considered either a systemic therapy or topical therapy based on the factual circumstances of each case." Id. at 1356. Subsequently, in 2018, the Court discussed the proper considerations to assign a rating based on systemic therapy under the prior version of Diagnostic Code 7806. Burton v. Wilkie, 30 Vet. App. 286 (2018). The Court built upon the findings in Warren and Johnson and held that the Board must determine whether a topical treatment operates by affecting the body as a whole in treating a veteran's skin condition. Id. at 292 (emphasis in the original) (further explaining that "the Board must decide how the topical treatment works not by its contact with the affected location of the condition in the body, but instead in some other way that affects the body more broadly"). The Court provided the example that a topical treatment may affect the body as a whole if it circulates through the bloodstream, and would not matter where the topical treatment was applied on the body, as the entire body would be involved in treatment. Id. Based upon the above, the Board finds remand to obtain a medical opinion concerning whether triamcinolone cream affects the body as a whole, so as to constitute systemic therapy under the prior version of Diagnostic Code 7806, to be warranted. The issue of an increased disability rating for eczema is REMANDED for the following action: 1. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's skin, not already of record, for the period from August 2013. 2. Return the October 2018 VA skin examination report to the VA examiner who conducted the examination for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion, although the VA examiner may wish to contact the Veteran for clarification on the questions below. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. The VA examiner should provide the following opinions: A) After reviewing the "rule of nines" eczema flare-up chart provided by the Veteran in July 2021, and the other lay and medical evidence of record, the VA examiner should opine as to whether the measurements provided in the Veteran's flare-up chart are consistent with what would be expected during a flare-up of the Veteran's eczema, based upon the other lay and medical evidence of record. If the VA examiner finds that the Veteran's "rule of nines" eczema flare-up chart is not consistent with the other evidence of record, the VA examiner should address the evidence supporting such a finding, and provide an estimation as to the total body area covered by the eczema during a flare-up. (Continued on the next page) B) The VA examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's triamcinolone cream topical corticosteroid, which has been taken on a constant or near constant basis, operates by affecting the body as a whole to treat the eczema. 3. Then, readjudicate the issue of an increased disability rating for the service-connected eczema. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.