Citation Nr: 21073436 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-63 437 DATE: December 8, 2021 ORDER Entitlement to a disability rating greater than 10 percent for eczema (a skin disability) is denied. Entitlement to a disability rating greater than 10 percent for limitation of flexion of the left knee is denied. FINDINGS OF FACT 1. The Veteran's skin condition has affected, at most, 5 to 20 percent of the entire body or exposed areas; the need for systemic therapy, while shown, was not required for a total duration of six weeks or more during the past 12-month period. 2. The Veteran's left knee condition is manifested by painful motion with flexion and extension limited to no worse than 130 degrees throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 10 percent for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. 2. The criteria for entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to March 1993, from May 2004 to February 2005, and from June 2008 to July 2009. The case is on appeal from a May 2015 rating decision. In October 2019, the Veteran withdrew his Board hearing request. The claim was las before the Board in March 2020. At that time, the Board remanded the claims of service connection for a right knee disability, a disability rating greater than 10 percent for limitation of flexion of the left knee, and a disability rating greater than 10 percent for a skin disability for further development. Upon remand, in a June 2021 decision, the RO granted service connection for right knee tendonitis/tendinosis-right knee strain, effective February 2, 2015. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a disability rating greater than 10 percent for a skin disability. Specific Legal Criteria DC 7806 provides that where there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period a noncompensable evaluation is warranted. When at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period, a 10 percent rating is assigned. Where there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is assigned. Where there is more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, a 60 percent rating is assigned. 38 C.F.R. § 4.118, DC 7806. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were substantively amended. See 83 Fed. Reg. 32592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised DCs 7806 and 7813, to state that disabilities evaluated under these DCs should be evaluated under the General Rating Formula for the Skin. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. In Warren v. McDonald, the United States Court of Appeals for Veterans Claims (Court) held that "systemic therapy" for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is "like" a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. 28 Vet. App. 194 (2016). In Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the "use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case" under the old criteria for 38 C.F.R. § 4.118, DC 7806. 862 F.3d 1351, 1356 (Fed. Cir. 2017). The Federal Circuit noted that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court interpreted Johnson to mean that when determining whether topical treatment for a skin disorder constitutes systemic therapy, such as corticosteroids or other immunosuppressive drugs, it must be determined (1) whether the topical treatment operates by affecting the body as a whole in its treatment of the condition at issue, and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Accordingly, consideration must be given to how a topical treatment works and how it affects the body as a whole, not the size of the skin area it is applied to. Analysis The Veteran was afforded a VA examination in April 2015, in which the examiner noted he was diagnosed with eczema in 2009. The examiner noted it is constant in duration and waxing/waning in severity. At the time of the examination, the Veteran was treating it with triamcinolone or clobetasol BID. There was no systemic steroid use. At the time of the examination, eczema was present on has both legs, groin, and right arm, the severity was mild, and there was no functional impairment. The examiner noted there was constant/near-constant use of topical corticosteroids. His total affected body area as less than 5 percent and none of the exposed body. The examiner described the appearance and location of the Veteran's skin condition as the following: superficial erythematous plaques noted involving right tibial area, left posterior knee, left groin, and right under arm. His total body involvement was percent, and total exposed involvement 0 percent. At the time of the examination, there was no facial or neck involvement. Additionally, there was no functional impact due to the Veteran's skin condition. Upon the Board's remand, the Veteran was afforded another VA examination in March 2021. The examiner noted the Veteran condition had worsened since onset, but that he had not been treated with medication, to include systemic therapy, in the past 12 months for any skin condition. The examiner further noted that the Veteran did not have a skin condition: finding no visible characteristic lesions. The examiner did, however, notice a rash that remained since service, intermittently returning despite treatment with Benadryl and topical steroids. The most recent episode was noted in August 2020. The examiner also found the Veteran's total affected body area is 5 to 20 percent, considering his multiple skin conditions. Medical records provide that in October 2014, a rash on the Veteran's buttock and legs was improving, but that he had new lesions on the left pelvic area that appeared a month prior. In December 2014, the Veteran was noted as having a history of mycosis fungoides, and that he started using topical bexarotene daily several weeks prior. However, the Veteran reported his skin became very red and irritated, and that the lesions began enlarging. He stopped using the bexarotene because his skin was so tender that he could not wear underwear or have sexual intercourse. He began using clobetasol intermittently with mild improvement. He also denied any itching, bleeding, or ulceration. Medical records from February 2021 show the Veteran did not have a rash. After review of the evidence, the Board finds a rating in excess of 10 percent for the skin disability is not warranted under DC 7806. The Veteran's skin disorder has impacted approximately 5 to 20 percent of the exposed or affected areas, supportive of the current 10 percent rating. In this regard, the medical evidence of record, including several VA examinations, does not support that the Veteran's skin disability affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. Additionally, while the Board finds the Veteran did use systemic therapy, it was not for the required amount of time. The evidence suggests the Veteran's required treatment included regularly taking prescription medication and use of topical corticosteroids. However, the most recent March 2021 VA examination report indicated his current treatment consisted of self-treatment only and that the Veteran received no treatment within the past 12 months. As a result, the evidence of record does not demonstrate use of a systemic therapy for 6 weeks or more during the past 12-month period. The Board has considered the amended criteria and all applicable provisions for evaluating the skin disability under 38 C.F.R. § 4.118. The new criteria are similar in nature as to the area affected and systemic therapy. In this case, however, the Board determines there is no evidence or criteria upon which to assign the Veteran a rating in excess of 10 percent for his skin condition. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for the skin condition and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. As such, a rating in excess of 10 percent for is not warranted. 2. Entitlement to a disability rating greater than 10 percent for limitation of flexion of the left knee. Specific Legal Criteria 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; 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."). As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Prior to the regulatory change, under DC 5260, a noncompensable rating is warranted if flexion is limited to 60 degrees; a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating is warranted if flexion is limited to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. A limitation of motion rating may also be warranted for limitation of extension under DC 5261. The criteria applicable to musculoskeletal knee disorders were unchanged by the revised regulations effective February 7, 2021. Analysis A VA examination was afforded the Veteran in April 2015. The examiner found the Veteran had a diagnosis of a left knee strain in 2003. At the time of the examination, the Veteran reported experiencing left knee pain since an incident in service and that it appears to be worsening over time. He described the pain as intermittent and aching, and noted he uses a knee brace. The examiner found the Veteran has no functional loss and his range of motion for flexion and extension were both normal. There was no pain, weakness, fatigability, or incoordination significantly limiting functional ability with repeated use over a period of time, no muscle atrophy, ankylosis, recurrent subluxation, or joint instability. The Veteran's muscle strength was also 5/5 and there were no flare-ups reported. Upon the Board's remand, the Veteran was afforded another VA examination in March 2021. During the examination, the Veteran reported intermittent knee swelling and throbbing bilateral knee pain (6 out of 10). He noted the pain is exacerbated by physical activity, specifically by stair climbing and prolonged walking. The examiner found no evidence of a meniscal tear, muscle atrophy, ankylosis, or joint instability. Additionally, the range of motion for flexion and extension remained normal. However, the Veteran did exhibit pain. The examiner also found the Veteran's condition had progressed/worsened since onset and evidence of crepitus and localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran also continued to endorse constant use of a knee brace. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left knee condition. While is evidence of crepitus and pain on extension and flexion, the evidence of record does not demonstrate a reduction in range of motion, instability, ankylosis, or recurrent subluxation. While the VA examinations show the Veteran experiences pain on flexion and extension and the Veteran reports difficulty doing normal daily activities, there is no evidence of record that shows the Veteran has knee flexion limited to 30 degrees or less due to such symptoms. Considering pain, the examiner estimated the range of motion based on review of the available evidence to be no less than 130 degrees. The Board acknowledges the Veteran's competent, credible reports regarding his pain causing additional functional loss. However, during neither VA examination did he report flare-ups which cause additional functional loss or further limitation. Accordingly, the Board concludes that as this clinical evidence fails to suggest that upon prolonged use of his knee or during a flare-up of his left knee condition, that his flexion is limited to 30 degrees or less, evidence of record fails to suggest a basis for awarding an increased rating based on functional loss. (Continued on the next page) In consideration of the evidence, the Board finds that since February 2014, the Veteran's left knee condition is manifested by flexion limited to no worse than 130 degrees. This is with consideration of painful motion, flare-ups, and other factors. This level of limited flexion equates to a noncompensable rating. However, painful motion results in the minimum rating; thus, the 10 percent rating for his left knee condition is appropriate. See 38 C.F.R. § 4.59. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his left knee condition. In denying such a rating, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thus, a higher rating is not warranted. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.