Citation Nr: 21064412 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-48 040A DATE: October 20, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae (PFB) is denied. An initial rating greater than 10 percent for right plantar fasciitis with calcaneal spurs is denied. An initial rating greater than 10 percent for left plantar fasciitis with calcaneal spurs is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PFB has required no treatment, has not caused scarring, has not caused deep acne, has affected less than five percent of the exposed areas on the face and neck and less than five percent of the total body area. 2. The Veteran's bilateral plantar fasciitis with calcaneal spurs is productive of moderate impairment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for PFB are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7899-7806. 2. The criteria for an initial rating greater than 10 percent for right plantar fasciitis with calcaneal spurs are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5269, 5284. 3. The criteria for an initial rating greater than 10 percent for left plantar fasciitis with calcaneal spurs are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5269, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to December 1977 and November 1990 to May 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2013 and August 2013 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Veteran testified that his PFB and bilateral plantar fasciitis had increased in severity and frequency since the VA examinations in 2013. Accordingly, the Board remanded this case in February 2021 for new VA examinations to determine the current severity of his service-connected PFB and bilateral plantar fasciitis. As the requested development has been completed, no other action is required to comply with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical, and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Evaluating the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. PFB. The Veteran contends a compensable rating for PFB is warranted because he experiences flare-ups, and PFB causes him embarrassment. The Veteran has a noncompensable rating for PFB under DCs 7899-7806 for other skin disabilities rated by analogy to dermatitis or eczema. The relevant Diagnostic Codes pertaining to skin issues are under 38 C.F.R. § 4.118. Effective August 13, 2018, VA revised 38 C.F.R. § 4.118. These revisions apply to all claims filed on or after August 13, 2018. Claims filed before and pending on August 13, 2018, will be evaluated under both the old and new rating criteria, and VA will apply whatever criteria are more favorable to the Veteran. 83 Fed. Reg. 32592. DCs 7800 through 7805 provide the rating criteria for different types of scars. For cases filed before August 13, 2018, DC 7806 warrants a 10 percent rating when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed areas; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of fewer than six weeks during the past 12-month period. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is the highest rating available under DC 7806. A 60 percent rating is warranted when dermatitis or eczema covers more than 40 percent of the entire body, more than 40 percent of the exposed areas, or control of dermatitis or eczema requires near-constant or constant systemic therapy such as corticosteroids or other immunosuppressive drugs over the past 12-month period. After August 13, 2018, the General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824 became applicable. Characteristic lesions involving less than 5 percent of the entire affected body or no more than topical therapy required over the past 12-month is noncompensable. A 10 percent disability rating is available when characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body 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 six weeks or more, but not constantly, over the past 12-month period. A 30 percent disability rating is available for evidence of characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy for a total duration of six weeks or more, but not constantly, over the past 12-month period. The General Rating Formula warrants a 60 percent disability rating when characteristic lesions, including PFB, affect more than 40 percent of the entire body or more than 50 percent of exposed areas, or treatment requires constant or near-constant systemic therapy over the past 12-month period. Under the new criteria, "systemic therapy" is defined as a treatment administered through any route (orally, injection, suppository, intranasally) other than the skin. Under DC 7828, a noncompensable rating is warranted for superficial acne (comedones, papules, pustules) of any extent; a 10 percent rating is warranted for deep acne affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck; a 30 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Alternatively, acne can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved; if two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(b); see also Esteban, 6 Vet. App.at 262; 38 C.F.R. § 4.14. The May 2013 and March 2021 VA examiners found that the Veteran's PFB covers less than 5 percent of exposed areas and less than 5 percent of the total body area. The examiners found no evidence of scarring, no neoplasm, no systemic manifestation, and no evidence of any treatments or procedures. March 2021 VA examiner noted the PFB manifest in small scatters of flesh-colored raised bumps along the Veteran's jawline. VA treatment records show no skin issues were observed, or the Veteran affirmatively denied skin issues in April 2013, May 2013, May 2018, May 2019, and December 2020. A July 2018 VA dermatology consult note shows a hyperpigmented symmetric papule, approximately half of a millimeter in size, was observed right below the right jaw in May 2018. The clinician noted the papule required no treatment, and the Veteran was advised not to pick at his hair. The relevant medical and lay evidence demonstrates an initial compensable rating is not warranted for PFB. After reviewing the competent and probative evidence, the Board finds that ratings under DCs 7800-7805 are not warranted. The Board has considered all applicable versions of the Diagnostic Codes. However, the Veteran's PFB has not caused scars, and he does not have burn scars or any scars on his body, including his head, face, or neck. A compensable rating under DC 7806 or the General Rating Formula for the Skin is not warranted under the pre or post-August 13, 2018 criteria as the evidence of record shows PFB, even when considering the Veteran's description of worsening during flare-ups, has not required any treatment, as determined by a medical professional, and affects less than 5 percent of the exposed areas affected on his face and neck and less than five percent of his total body area. A compensable rating under DC 7828 is also not warranted as the Veteran's PFB, even when considering the Veteran's description of worsening during flare-ups, has not manifested in deep acne; instead, the disability picture described in the record is comparable to superficial acne, which is noncompensable. The Board acknowledges the argument that the PFB causes embarrassment; however, the disability findings, in this case, do not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards or warrant a referral for an extra-schedular evaluation. 38 C.F.R. §§ 3.321(b)(1), 4.16. All possibly applicable Diagnostic Codes were considered, but the Veteran's PFB does not warrant an initial compensable rating throughout the entire period on appeal. See Schafrath, 1 Vet. App. at 593. 2. Right foot plantar fasciitis with calcaneal spurs. 3. Left foot plantar fasciitis with calcaneal spurs. The Veteran contends that he is entitled to a higher rating for his bilateral plantar fasciitis with calcaneal spurs because he continues to have pain after being on his feet. The Veteran's representative noted the Veteran's non-service-connected foot disabilities of flat feet, hallux valgus, and arthritis of the feet. As the March 2021 VA examiner explained in detail, these disabilities are unrelated to plantar fasciitis with calcaneal spurs. Symptoms exclusive to the disabilities not service-connected will not be considered; however, any overlapping symptoms that cannot be distinguished will be attributed to the plantar fasciitis with calcaneal spurs. Plantar fasciitis is the inflammation of the plantar fascia, owing to repetitive stretching or tearing of muscle fibers near their attachment to the calcaneal tuberosity; it is one of the most common causes of heel pain. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 677 (33d ed. 2019). Historically, plantar fasciitis was rated by analogy, usually under DC 5276 or DC 5284; however, VA amended the rating schedule effective February 7, 2021, by adding DC 5269 for plantar fasciitis. As the Veteran's case has been pending before the addition of DC 5269 on February 7, 2021, DCs 5269, 5276, and DC 5284 will be considered from the effective date of the amendment forward, and whatever criteria are most favorable to the Veteran will be applied to that time period. The Veteran's bilateral plantar fasciitis with calcaneal spurs is rated under 38 C.F.R. § 4.71a, DC 5284, for other foot injuries. Under DC 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to DC 5284 instructs that the actual loss of use of the foot be rated at the maximum 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. The Rating Schedule does not define words such as "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, VA must evaluate all evidence to ensure that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY at 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. Under DC 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 bilateral or unilateral moderate acquired flatfoot: weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use of the feet. A 20 percent rating is assigned for severe unilateral acquired flatfoot: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flatfoot: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and 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 Achilles tendon 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 Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Under DC 5269, in effect from February 7, 2021 forward, a 10 percent rating is warranted for plantar fasciitis, otherwise, unilateral or bilateral. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A maximum 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The 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. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. The May 2013 VA examiner found the Veteran's bilateral plantar fasciitis with calcaneal spurs was of moderate severity as his foot conditions resulted in decreased tolerance for prolonged standing and walking. The examiner noted the Veteran occasionally uses a cane due to his foot and knee pain. During the May 2021 VA examination, the Veteran expressed that his bilateral foot disability caused sharp, achy, throbbing, and stabbing pain in both feet, across the bottom of both feet, occasionally stiff, and with pain in the top of both feet too. The Veteran reported being unable to walk for long periods and having difficulty mowing the lawn. The Veteran described flare-ups as occurring twice a month, precipitated by a lot of walking, like mowing the lawn, resulting in throbbing, pulsating of moderate severity, and alleviated by rest and elevation. The May 2021 VA examiner noted the Veteran had not undergone non-surgical or surgical treatment for plantar fasciitis, nor was the Veteran recommended for surgical intervention. The Veteran experienced functional loss due to bilateral interference with standing, pain, and lack of endurance. The Veteran experienced pain with standing and other weight-bearing activities such as walking, stepping, active range of motion of the bilateral feet, flexion and extension, and inversion and eversion. The Veteran's bilateral foot pain prevents him from standing for prolonged periods, running, mowing the lawn for prolonged periods, walking for prolonged periods, climbing multiple floors of stairs at one time, and jumping. The examiner found no other functional loss during flare-ups or after repeated use over time. The examiner noted the Veteran occasionally uses a cane for all his foot conditions, including bilateral plantar fasciitis. There are no medical treatment records relevant to the plantar fasciitis, and the Veteran's statements regarding his symptomatology are consistent with those noted in the examination reports and have been considered here. The Board has considered the other Diagnostic Codes pertaining to the foot. In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes, which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also 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 one of the eight conditions listed in the rating schedule. Id. The Board finds that the preponderance of the evidence is against a rating more than 10 percent under DCs 5269, 5276, 5284, or any other Diagnostic Code for the Veteran's right and left foot plantar fasciitis. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to constant pain. However, even considering the Veteran's lay statements of symptoms and functional loss, including when considering factors such as flare-ups, repetitive use, active motion, passive motion, weight-bearing, non-weight-bearing, weakened movement, excess fatigability, and incoordination, the degree of additional limitation reflected by the examinations and statements that constant pain inhibits his ability to walk for prolonged periods would not result in symptoms more nearly approximating unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment, objective evidence of marked deformity, or moderately severe other foot injuries. Notably, symptoms of pain on manipulation and use of the feet, bilateral or unilateral, are explicitly listed as warranting 10 percent under DC 5276, and the symptoms. (Continued on the next page) In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right and left plantar fasciitis with calcaneal spurs. A higher rating is also not warranted under DC 5284 by analogy, as the symptomatology described by the Veteran and documented in the examination reports does not rise to the level required for a 20 percent rating. Furthermore, the rating criteria associated with the amended DC 5269 do not provide for an increased rating, as the Veteran's plantar fasciitis does not demonstrate the criteria needed for a 20 or 30 percent rating for either foot. As such, an increase is not warranted. 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. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.