Citation Nr: 21068198 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-51 741 DATE: November 9, 2021 ORDER A 10 percent rating for left ankle arthritis and painful limitation of motion is granted. An effective date prior to May 27, 2015, for the grant of service connection for adjustment disorder with mixed anxiety and depression, is denied. An effective date prior to May 27, 2015, for the grant of service connection for left ankle arthritis, is denied. An effective date prior to May 27, 2015, for the grant of service connection for a left ankle scar, is denied. An effective date prior to May 27, 2015, for the grant of service connection for eczema, is denied. REMANDED Entitlement to a rating in excess of 10 percent rating for left ankle arthritis and painful limitation of motion is remanded. Entitlement to a compensable rating for a left ankle scar is remanded. Entitlement to a rating in excess of 30 percent prior to July 20, 2016, and in excess of 70 percent rating thereafter for adjustment disorder with mixed anxiety and depression is remanded. Entitlement to a compensable rating for eczema is remanded. FINDINGS OF FACT 1. The Veteran's left ankle disability has been manifested by painful motion in plantar flexion; she has full range of motion in the left ankle. 2. The Veteran's last day of active-duty service was May 26, 2015. 3. The Veteran's claims for service connection for a psychiatric disorder, left ankle disorder, left ankle scar, and eczema were received by VA in June 2015, within one year after her separation from active service. 4. A September 2015 rating decision granted service connection for a psychiatric disorder, left ankle disorder, left ankle scar, and eczema and assigned an effective date of May 27, 2015, the day after the Veteran's separation from active service. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent for left ankle arthritis and painful limitation of motion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5271. 2. The criteria for entitlement to an effective date earlier than May 27, 2015 for a grant of service connection for the grant of service connection for adjustment disorder with mixed anxiety and depression, are not met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date earlier than May 27, 2015 for a grant of service connection for left ankle arthritis, are not met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date earlier than May 27, 2015 for a grant of service connection for a left ankle scar, are not met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an effective date earlier than May 27, 2015 for a grant of service connection for eczema, are not met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 30, 2012 to May 26, 2015. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before the Board in July 2019, but failed to appear, provided no explanation for her failure to appear, and did not request a new hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702. General Disability Rating Criteria-Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. In such instances, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Left Ankle Arthritis The Veteran is currently in receipt of a noncompensable rating for her left ankle arthritis disability. 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. The Board notes that regulations regarding limitation of motion of the ankle changed effective February 7, 2021. The assigned percentages remained the same for the disabilities, with the ankle disabilities still being described as either moderate (warranting a 10 percent disability evaluation under Diagnostic Code 5271) or marked (warranting a 20 percent disability under Diagnostic Code 5271). The new regulation defines moderate as less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. It defines marked as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. These regulations are not retroactive. Actually painful, unstable or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. VA ankle examination reports conducted in 2015 and 2018 show that the Veteran had full range of motion in the left ankle. See also January 2016 VA treatment note (Veteran was found to have full range of motion in left ankle). However, because the Veteran has credibly described her left ankle as painful, it is entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. See e. g., January 2016 VA treatment note (Veteran was found to have pain and tenderness over tibialis anterior tendon over shin and left lateral malleolar region); see also April 2018 VA examination report (examiner noted pain with plantar flexion motion). As such, the Veteran's left ankle disability warrants a 10 percent rating. Earlier Effective Date ClaimsLaws and Analysis The Veteran seeks earlier effective dates for the grant of service connection for her psychiatric disorder, left ankle disorder, left ankle scar, and eczema. Neither the Veteran nor her representative has explained why the Veteran is legally entitled to earlier effective dates. The effective date of a grant of service connection is governed by 38 U.S.C. § 5110, as implemented by 38 C.F.R. § 3.400. 38 U.S.C. § 5110 (a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (b)(1) states that "the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release." Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board concludes that effective dates prior to May 27, 2015 for the grant of service connection for the Veteran's psychiatric disorder, left ankle disorder, left ankle scar, and eczema disabilities are not warranted. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. In this regard, the Veteran's last day of active-duty service was May 26, 2015. See DD Form 214. The Veteran's claims for service connection for a psychiatric disorder, left ankle disorder, left ankle scar, and eczema were received by VA in June 2015, within one year after her separation from active service. A September 2015 rating decision granted service connection for a psychiatric disorder, left ankle disorder, left ankle scar, and eczema and assigned an effective date of May 27, 2015, the date after the Veteran's separation from active service. When determining an effective date for the award of service connection, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). Here, the RO assigned as an effective date the day following separation from service. It is not possible to assign an effective date earlier than May 27, 2015 for the grant of service connection for any disability because prior to that date, the Veteran was still an active-duty member of the United States Air Force and accordingly not entitled to veterans' benefits. As a matter law, earlier effective dates are not warranted for the grant of service connection for a psychiatric disorder, left ankle disorder, left ankle scar, and eczema. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). Accordingly, the claims are denied. REASONS FOR REMAND Left Ankle Disability, Left Ankle Scar, and Adjustment Disorder with Mixed Anxiety and Depression The Board notes that an additional VA ankle examination report was associated with the claims file in April 2018, notably after the most recent statement of the case (SOC) was issued in September 2016. The examination addressed the Veteran's left ankle disability, to include range of motion testing and the left ankle scar. Moreover, extensive VA medical treatment records have been associated with the record since the SOC. As this medical evidence was generated by VA, and because a waiver of AOJ consideration has not been provided by the Veteran (and because the case is being remanded for other development), a remand is warranted in order to allow the AOJ to review this evidence and issue a SSOC. See generally Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). Eczema The Veteran is currently in receipt of a noncompensable rating for her eczema disability under Diagnostic Code 7806. The rating criteria applicable to the Veteran's service-connected skin disability consider use of topical and systemic therapies for treatment, such as corticosteroids or other immunosuppressive drugs. 38 C.F.R. § 4.118, Diagnostic Code 7806. The regulations prior to August 13, 2018, do not contain definitions for topical therapy or systemic therapy. Whether a medication is topical or systemic is a non-binary choice, and the determination must be made on a case-by-case basis. Warren v. McDonald, 28 Vet. App. 194 (2016); Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Here, the Veteran was provided with VA examinations in August 2015, and the report reflect her usage of antihistamines, topical corticosteroids, and other topical medications on a constant or near-constant basis. In this report, the examiner did not make a determination as to whether the Veteran's treatment for her service-connected skin disorder constituted systemic therapy such as corticosteroids or other immunosuppressive drugs within the meaning of rating criteria. Therefore, additional medical evidence is necessary to guide the Board's analysis. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician regarding her appeal for an increased evaluation for eczema. In addition to completing an examination, the examiner must specifically address whether the any medications used to control the Veteran's skin condition throughout the appeal period constitute systemic therapy like a corticosteroid or other immunosuppressive drug. For topical treatments, the examiner must state (a) whether the treatment operates by affecting the body as a whole to treat his service-connected skin disabilities and (b) whether the treatment is like a corticosteroid or other immunosuppressive drug. A complete rationale must be provided for all opinions presented. 2. Then, readjudicate the claims on appeal. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.