Citation Nr: 21071327 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-25 831 DATE: November 30, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for multilevel degenerative disc disease of the cervical spine (a neck disability), prior to May 14, 2021, is denied. Entitlement to an increased rating in excess of 30 percent for multilevel degenerative disc disease of the cervical spine (a neck disability), from May 14, 2021, is denied. Entitlement to an increased rating in excess of 30 percent for psoriasiform and non-specific dermatitis (a skin disability) is denied. Entitlement to an earlier effective date of May 13, 2015, but not earlier, for the grant of a 40 percent disability rating for radiculopathy of the right upper extremity (RUE) is granted. Entitlement to an earlier effective date of May 13, 2015, but not earlier, for the grant of a 30 percent disability rating for radiculopathy of the left upper extremity (LUE) is granted. REMANDED Entitlement to an effective date prior to May 19, 2017, for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U. S. C. Chapter 35 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to May 14, 2021, the Veteran's neck disability was not productive of limitation of forward flexion of the cervical spine to 15 degrees or less; nor ankylosis of the entire cervical spine, or intervertebral disc disease (IVDS) with incapacitating episodes having a total duration of at least 4 weeks during a 12-month period. 2. From May 13, 2021, the Veteran's neck disability does not demonstrate any evidence of ankylosis or incapacitating episodes. 3. The Veteran's skin disability has not manifested to an affected area of more than 20 to 40 percent of the total body or requiring constant or near constant topical treatment during any 12-month period. 4. On May 13, 2016, the Veteran was afforded a VA examination which demonstrated that the Veteran's service-connected RUE and LUE, warranted an increased rating. 5. In May 2016, the RO issued a rating decision which granted increased rating to the Veteran's service-connected RUE and LUE, to 40 percent and 30 percent, respectively, effective May 13, 2016, the date of the VA examination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's a neck disability, prior to May 14, 2021, have not been 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, Diagnostic Code (DC) 5242-5237. 2. The criteria for a rating in excess of 30 percent for the Veteran's a neck disability, from May 14, 2021, have not been 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 5242-5237. 3. The criteria for entitlement to an increased rating exceeding 30 percent for service-connected skin disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7806. 4. The criteria for an earlier effective date of May 13, 2015, but not earlier, for an increased rating of 40 percent for RUE, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 5. The criteria for an earlier effective date of May 13, 2015, but not earlier, for an increased rating of 30 percent for LUE, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1987 to February 1988 and from June 2007 to May 2008. Increased Rating Disability ratings are determined by comparing a Veteran's symptomatology during the pertinent period on appeal with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran's disabilities prior to the rating periods on appeal to see if the history supports a higher rating during the rating periods on appeal. Additional references to the Veteran's service-connected disabilities are presented in evidence of record beyond that discussed below, including in VA medical reports associated with the Veteran's treatment. The additional evidence of record does not present findings that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Special Considerations for Musculoskeletal Disability Ratings Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Pain may be taken into consideration when rating functional loss. However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." 38 C.F.R. § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. Finally, it is the intention of the VA rating schedule 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. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. 1. Entitlement to an increased rating in excess of 20 percent for multilevel degenerative disc disease of the cervical spine (a neck disability), prior to May 14, 2021 2. Entitlement to an increased rating in excess of 30 percent for multilevel degenerative disc disease of the cervical spine (a neck disability), from May 14, 2021 By way of procedural history, the Veteran's claim for an increased rating for his neck disability was previously remanded by the Board in January 2019. While under development at the RO, the Veteran was granted a staged, increased rating from 20 percent to 30 percent disabling, effective May 14, 2021, the date of the VA examination reveling a more severe neck disability. The Veteran claims that, for both staged periods, his neck disability is worse than that contemplated by his assigned ratings, and that an increased rating is warranted. The Board finds, however, that a close review of the competent medical evidence of record, to include VA examinations and treatment records, reveals that a higher rating for either period is not warranted. As such, the Board must find that the Veteran's claims for an increased rating must be denied, for both staged periods. The Veteran's neck strain with arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for cervical spine strain. This Diagnostic Code is rated under the General Rating Formula for Diseases and Injuries of the Spine which is unchanged by the new regulations effective February 7, 2021. The Veteran's neck disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5242 has been amended to include degenerative disc disease other than intervertebral disc disease (IVDS), as well as degenerative arthritis. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes, also unchanged by the new regulations, provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. With regards to the entire claims period, the Veteran was afforded two separate VA examinations to assess the nature and severity of his neck disability, in May 2016 and May 2021. During his initial May 2016 examination, the Veteran was noted to complain about increased pain in his neck, to include flare-ups. Upon examination the Veteran's cervical spine was noted to be limited to 45 degrees of flexion, and a combined 190 degrees of combined range of motion. The examiner noted no pain on weightbearing or tenderness on palpation. Repeat motion testing revealed no additional loss of range of motion. No diagnosis of ankylosis or IVDS was found, with no evidence of incapacitating episodes. The examiner diagnosed the Veteran with degenerative arthritis of the spine. At his May 2021 VA examination, the Veteran was again diagnosed with degenerative disc disease of the cervical spine, as well as IVDS. The Veteran was again noted to complain of ongoing pain in his neck, to include muscle spasms, which he receives injections to relieve the pain. He complained of flare-ups that happen on a daily basis, which are relieved if he "wait[s] it out". Upon physical examination the Veteran's cervical spine was limited to 20 degrees of flexion, with evidence of pain on active motion. Repeat motion testing showed further decreases in flexion to 15 degrees, and even further limitation was noted to 10 degrees of flexion, when considering flare-ups. No ankylosis was found, and no incapacitating episodes were reported by the Veteran during the examination. In addition to this VA examination, the claims file also contains copious amounts of VA and private treatment records for the entire claims period. A close review of these records provides largely generalized treatment for the Veteran's various disabilities, to include his neck disability. While these record document various complaints and treatment for neck pain, such do not provide testing/reporting of any specific criteria requisite for a higher rating. In other words, none of these records provide for objective measurement, or speak to, the Veteran's limitation of motion of the cervical spine; likewise, these records do not show a diagnosis of ankylosis, or demonstrate any instances of incapacitating episodes. Pain may be taken into consideration when rating functional loss. However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." 38 C.F.R. § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Initially, the Board notes that there has been no medical evidence of ankylosis, or incapacitating episodes caused by IVDS of the cervical spine during the course of the entire appeals period. Thus, a higher rating cannot be assigned based on those bases. The Board also notes that the Veteran has been rated separately for neurological deficits associated with the cervical spine disability. Therefore, the issue of ratings for any associated neurologic disabilities is not currently before the Board and will not be addressed in this decision. For the period prior to May 14, 2021, as noted above, the next higher rating, at 30 percent, under the appropriate Diagnostic Code, requires that the Veteran's neck disability be limited to 15 degrees of less of forward flexion, or evidence of ankylosis of the entire spine; and with regards to IVDS, a higher rating would require four weeks of incapacitating episodes. The Board find that the evidence of record for the relevant period, reveals no evidence that the Veteran's neck disability even approaches these objective criteria. During the only VA examination of the period, the Veteran's neck disability was essentially normal, at 45 degrees of flexion, even considering repeat motion. Therefore, as no other record speak to the objective criteria for a higher rating, to include no evidence of incapacitating episodes and/or ankylosis, the Board must find that a higher 30 percent rating for this period is not warranted. Likewise, the Board finds that from May 14, 2021, the Veteran's cervical spine disability also do not warrant a rating in excess of 30 percent. Here, a higher rating is only warranted upon finding of ankylosis. As there is no evidence of a finding of ankylosis, or limitation of motion skin to ankylosis, a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.71a, DC 5242. The Board notes that while there the May 2021 VA examination recorded severe limitation in the Veteran's range of motion of the cervical spine, to especially include during flare-ups, the Board finds that some motion remains, to include 5 degrees of forward flexion and a combined 40 degrees of motion. As noted above, ankylosis is defined as "fixed" or "immobile", in other words, zero degrees of motion. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). As there remains some movements in the Veteran's cervical spine, even accounting for flare-ups, the Board must find that such does not amount to ankylosis. Consequently, a higher rating is not warranted for the latter period. For both periods, the Board has considered functional loss due to pain; with regards to pain, as documented in treatment records contemporaneous to the claims period, the Board finds no clear basis for concluding that the Veteran's pain documented resulted in functional loss limiting the function of the cervical spine's forward flexion to 15 degrees or less. The Board finds no indication in these treatment record in which can be construed as pain limiting the Veteran's range of motion to less than one-third of its normal range of motion, or less. As such, the Board finds that none of the information presented in these treatment records indicate functional impairment as to limit the forward flexion of the Veteran's cervical spine to 15 degrees or less, or akin to ankylosis. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent prior to May 14, 2021. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent for a neck disability from May 14, 2021. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings. Thus, the claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to an increased rating in excess of 30 percent for psoriasiform and non-specific dermatitis (a skin disability) The Veteran's skin disability is currently rated at 30 percent disabling. However, the Veteran contends that his skin disability warrants a higher rating, as his symptoms have worsened. The Veteran's skin disability is currently rated as 30 percent disabled under the provisions of Diagnostic Code 7806, based upon the predominant disability being dermatitis. The Board notes that the rating criteria for evaluating skin were amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). This amendment resulted in a change in the criteria for Diagnostic Code 7806. Prior to August 13, 2018, under Diagnostic Code 7806, a 10 percent rating was warranted if 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 was affected, or; if intermittent system therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas was affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The highest rating of 60 percent was warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas was affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806, as in effect prior to August 13, 2018. Effective August 13, 2018, under Diagnostic Code 7806, a 10 percent rating is warranted if there is one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent 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 for a total duration less than 6 weeks over the past 12-month period. A 30 percent rating is warranted if there is one of the following: characteristic lesions involving 20 to 40 percent of the entire body affected or 20 to 40 percent of exposed areas affected; or 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 for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating is warranted if there is at least one of the following: characteristic lesions involving more than 40 percent of the entire body affected or more than 40 percent of exposed areas affected; or 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. Systemic therapy means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). During the claims period, the Veteran was afforded two separate VA examination to assess the nature and severity of his skin disability, to May 2016 and April 2021. In his initial May 2016 VA examination, the examiner diagnosed the Veteran with nonspecific psoriasiform, to include mainly around the Veteran's groin area. The Veteran noted complaint of occasional flare-ups which last three to four days and required application of a topical cream, he also noted some instance where rashes appear on his face, neck, back, arms, and chest; however, such condition was not present during the examination. The examiner noted the Veteran's use of topical corticosteroids for his condition, with a total duration of 6 weeks or more, however, not constant. Upon physical examination, the Veteran's condition was noted to affect less than 5 percent of his total body area, to include exposed areas. In an April 2021 VA examination, the examiner noted, ostensibly, the same results as to the Veteran's skin condition as the prior examiner. Specifically, the Veteran was diagnosed with lichenoid chronic inflammatory infiltrate, with symptoms including constant and/or sporadic rashes, which he relieves with topical hydrocortisone. The examiner noted that such condition was impacted by increased activity with increased sweating. The examiner noted that Veteran used a topical corticosteroids medication on a 6 week or more duration, for the last 12 months, but this use was not considered constant. Upon physical examination, the condition was noted to affect less than five percent of his total body area, with no exposed area. Additionally, the examiner noted only hyperpigmentation in a 6x4 cm area around the groin. No other skin condition or symptoms were noted. The Board has also evaluated all the additional medical evidence of record, to include both VA and private treatment records for the entire claims period. To this end, the Board finds no additional evidence specific in evaluating the severity of the Veteran's skin condition. While there is evidence of some complaints and treatment for his skin condition, none of these records speak directly to any of the criteria set out by the diagnostic code. Specifically, the record is silent with regards to any objective evaluation of the total body surface area affected by the skin condition, or whether any corticosteroid treatment was used on a constant basis. As such, the Board finds the VA examinations of record to be the most probative evidence of record in establishing the severity of the Veteran's service-connected skin disability. Based on the above, the Board finds that an increased rating is not warranted. During the entire claims period, the competent medical evidence shows that the Veteran's condition only affected an area less than 5 percent of his total body area, even considering exposed areas. To this end, the medical evidence seems to show that the condition is ostensibly limited only to the groin area of the Veteran's body and requires topical medication for a duration less than constant. While the Veteran did note that some rashes did appear on other various parts of his body, no evidence of such has been presented, or noted in any treatment records, as to the extent or frequency of such flare-ups. In fact, many instances in the Veteran's treatment notes have explicitly noted normal skin with no blemishes or rashes. As such, the Board must find that such condition and treatment is commensurate of a 30 percent rating under Diagnostic Code 7806, and that the next higher rating is not warranted. As noted above, the next higher rating under Diagnostic Code 7806, before or after August 2018, requires affected are by the skin condition to be in excess of 40 percent, or the constant, or near constant, use of a corticosteroid. Here, the competent medical evidence of record does not demonstrate that the Veteran's condition fulfills either criteria. Objective evaluation of the Veteran's affected skin condition has consistently been noted to be below 5 percent of his entire or exposed body area, and while the Veteran has been noted to require some type of topical corticosteroid, such has consistently noted to be used for a duration that is considered less than constant, for any 12-month period. Here, as neither the competent medical evidence demonstrates, nor any lay statement asserts, that such condition requires the constant or near constant use of treatment for his condition, the Board must find that the preponderance of evidence remains against the claim. Therefore, as there is no additional probative evidence to the contrary that would result in higher ratings, the Board concludes that an increased rating exceeding 30 percent, for service-connected skin disability, is not warranted; and the claim is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The appeal is denied. 4. Entitlement to an earlier effective date of May 13, 2015, but not earlier, for the grant of a 40 percent disability rating for radiculopathy of the RUE 5. Entitlement to an earlier effective date of May 13, 2015, but not earlier, for the grant of a 30 percent disability rating for radiculopathy of the LUE Generally, the effective date for service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. For increases in disability compensation the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from that date. Otherwise, the effective date for increase will be the date of the claim for increase. 38 C.F.R. § 3.400(o). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. By way of procedural history, the Board notes that the Veteran was initially granted service connection for his radiculopathy of the bilateral upper extremities (BUE) in a February 2011 rating decision, when he was assigned a 10 percent rating for both arms. Upon receiving such rating, the Veteran submitted an Appeals Satisfaction form (VA Form 21-44) in March 2011, explicitly noting satisfaction with his grant of service connection and associated ratings for his BUE. As such, that decision became final. Subsequent to that final decision, in February 2013, the VA received a request from the Physical Evaluation Board of the Department of the Army for a determination on rating percentages related to his various service-connected disabilities, to include his RUE and LUE. In response to this request, the RO issued a rating decision in January 2014 that continued the Veteran's 10 percent rating for both extremities. No response is of record from the Veteran. On May 13, 2016, the RO afforded the Veteran another series of examinations, to include an examination that assessed the nature and severity of his neck disability; that examination also included evaluation of radiculopathy of the bilateral upper extremity. This examination was the basis for the RO's subsequent grant of an increased rating for the RUE and LUE, to 40 and 30 percent respectively, from his initial 10 percent ratings. In that May 2016 rating decision, the RO assigned the effective date of the increased rating to May 13, 2016, the date of the VA examination. The Veteran contends that an earlier effective date should be assigned for this increased rating; and the Board agrees. As noted above, for claims for an increased rating, the effective date is the earliest date as of which it is factually ascertainable, as long as it is withing a year of the date of the claim. Here, as s preliminary matter, the Board notes that subsequent to the initial grant of service connection in 2011, there is no evidence of record in which can be construes as a claim for increased rating, rather formal or informal. To this end, the Board does not find that the February 2013 Department of the Army request for a rating to be considered a claim for increased rating, nor does the record reveal any contest with the RO's determination to that request, that continued the Veteran's 10 percent rating for the RUE and LUE. Consequently, the May 13, 2016 VA examination was the beginning of the claim and appeals period. The Board, however, find that while there is no evidence of an earlier claim, prior to the May 2016 VA examination, there is evidence of record that shows increase in severity of the Veteran's BLU a year prior to May 13, 2016. To this end, the Board notes that in an earlier June 2012 VA examination, the Veteran was noted to suffer from pain and numbness of the bilateral upper extremity, to include neuralgia and decreased sensation, but also pain and numbness radiating from the shoulders to the hand a fingertip. The Board finds that the medical evidence prior to the initial claims period, starting May 13, 2016, to demonstrate sufficient evidence that the Veteran's increased rating for both arms arose a year prior to his current effective date. Therefore, as such increased severity of both arms arose prior to May 13, 2016, the Board finds that an earlier effective date of May 13, 2015 (one year prior) but not earlier, can be appropriately assigned for the increase in such ratings for the RUE and LUE; as such, to this extent, the Veteran's claims are granted. REASONS FOR REMAND 1. Entitlement to an effective date prior to May 19, 2017 for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U. S. C. Chapter 35 is remanded. With regards to the Veteran's claim for DEA, the Board notes that because development for a TDIU could significantly impact a decision on the Veteran's claim DEA, the issues are inextricably intertwined; and as such a remand of the claim is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. With regards to the Veteran's claim for a TDIU, the Board finds that the record requires further development for the Board to adequately make a determination regarding a TDIU. Specifically, while the Board acknowledges that the Veteran's service-connected disabilities are sufficient to fulfill the statutory percentage criteria for consideration of a TDIU, the Board does not have any evidence that speaks to the current disability picture of the Veteran's psychiatric disability. Here, the Board notes that nearly all of the Veteran's service-connected disabilities are considered physiological disabilities, with the exception of the Veteran's service-connected PTSD. This psychiatric disability is also the single highest rated disability affecting the Veteran (50 percent) and among the only disability he is service-connected for that may affect his ability to obtain or sustain sedentary employment. As such, a current disability picture regarding this disability is critical in any analysis regarding a TDIU. Unfortunately, the Board finds that development regarding his disability has become stale, with no current treatment records, or VA examination for nearly a decade. As such, the Board finds remand is required for the VA to obtained updated private and VA psychiatric treatment records regarding the Veteran's PTSD, and afford the Veteran a VA examination to assess the current nature and severity of his psychiatric disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination to assess the current nature and severity of PTSD. The examiner must review the claims file and should note that review in the report. The examiner should opine regarding the levels of social and occupational impairment caused by PTSD and should describe the symptoms, and the frequency and severity of those symptoms, that causes those levels of impairment. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly describe the impact, if any, of the Veteran's PTSD, alone and in combination with his other service-connected disabilities, on his ability to perform activities of daily living and work-like tasks. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.