Citation Nr: 21074109 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-28 619 DATE: December 14, 2021 ORDER A rating in excess of 10 percent for thoracolumbar spine disability (previously characterized as thoracolumbar strain with sacroiliac dysfunction and now characterized as thoracolumbar strain with sacroiliac dysfunction and intervertebral disc syndrome (IVDS)) prior to May 10, 2018 is denied. A rating in excess of 20 percent for thoracolumbar spine disability from May 10, 2018 to June 23, 2021 is denied. A rating in excess of 40 percent for thoracolumbar spine disability from June 24, 2021 is denied. A rating in excess of 20 percent for right shoulder labral tear, status-post arthroscopy and trapezius strain (hereinafter, "right shoulder disability") is denied. A rating in excess of 10 percent for seborrheic dermatitis and vaginal candidiasis is denied. A 30 percent rating is granted for shoulder scars from March 1, 2012, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The disabilities of the Veteran's thoracolumbar spine and right shoulder have been manifested by pain and resulting functional impairment throughout the pendency of her claim. 2. During the period on appeal prior to May 10, 2018, the Veteran's thoracolumbar spine disability is not shown to have been manifested by forward flexion limited to 60 degrees or less, a combined range of motion 120 degrees or less, 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. 3. During the period on appeal from May 10, 2018 to June 23, 2021, the Veteran's thoracolumbar spine disability is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; nor by favorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. 4. For the period on appeal from June 24, 2021, the Veteran's thoracolumbar spine disability is not shown to be manifested by unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. 5. Throughout the pendency of her claim, the Veteran's thoracolumbar spine disability is not shown to have been manifested by incapacitating episodes of IVDS, as defined by VA regulation, or associated neurologic impairment other than the already separately evaluated radiculopathy of the lower extremities. 6. The Veteran is right-hand dominant; her right arm is her "major" upper extremity. 7. Throughout the pendency of her claim, the Veteran's right shoulder disability is not shown to have been manifested by motion limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). 8. Throughout the pendency of her claim, the Veteran's seborrheic dermatitis and vaginal candidiasis are not shown to have involved 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; nor are the conditions shown to have been treated with systemic therapy. 9. During the pendency her claim, from March 1, 2012, it is at least as likely as not that the Veteran's disability picture as to the shoulder scars more nearly approximated impairment analogous to the presence of five painful scars. 10. The Veteran's scars do not cover an area or areas exceeding 144 square inches (929 sq. cm.); nor do they result in disabling effects not otherwise contemplated by the applicable diagnostic codes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected thoracolumbar spine disability prior to May 10, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243-5237. 2. The criteria for a rating in excess of 20 percent for thoracolumbar spine disability from May 10, 2018 to June 23, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243-5237. 3. The criteria for a rating in excess of 40 percent for thoracolumbar spine disability from June 24, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243-5237. 4. The criteria for a rating in excess of 20 percent for service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 5. The criteria for a rating in excess of 10 percent for service-connected seborrheic dermatitis and vaginal candidiasis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7820-7806. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent rating for shoulder scars have been met from March 1, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1990 to February 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In pertinent part, the RO granted service connection and a 10 percent rating for thoracolumbar strain with sacroiliac dysfunction; service connection and a 10 percent rating for right shoulder labral tear, status post arthroscopy and trapezius strain; service connection and a 10 percent rating for seborrheic dermatitis; service connection and a 0 (zero) percent (noncompensable) rating for vaginal candidiasis; and service connection and a noncompensable rating for scars of the shoulders, status post arthroscopy. Each of the awards were made effective March 1, 2012. In February 2017, while the Veteran's appeal was pending, the RO combined seborrheic dermatitis and vaginal candidiasis under 38 C.F.R. § 4.118, Diagnostic Codes 7820-7806 and continued the prior 10 percent rating. In September 2018, the RO increased the rating for the right shoulder to 20 percent, effective March 1, 2012; increased the rating for the low back to 20 percent, effective May 10, 2018; and increased the rating for scars of the right shoulder to 20 percent, effective May 10, 2018. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. On the day of the hearing, the Veteran submitted a statement asking that the power of attorney she had executed in favor of a representative be revoked. The record does not reflect that she has appointed a new representative since that time. As such, she is proceeding pro se. In March 2021, the Board remanded this case to the agency of original jurisdiction (AOJ) for additional development, to include updated VA medical records and new medical examinations. In July 2021, after taking further action, the AOJ increased the rating for the service-connected thoracolumbar spine disability to 40 percent, effective June 24, 2021. The prior ratings were otherwise confirmed and continued, and the case was returned to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, the Veteran has already been assigned various "staged" ratings during the pendency of her claim. 1. Entitlement to a rating in excess of 10 percent for service-connected thoracolumbar spine disability prior to May 10, 2018 The Veteran's service-connected thoracolumbar spine disability has been evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine, which provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, if the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, if there has been a vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, and the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran's thoracolumbar spine disability has been manifested by pain and resulting functional impairment, to include limitation of motion. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that 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. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. For the period on appeal prior to May 10, 2018 the Veteran's service-connected thoracolumbar spine disability is not shown to have been manifested by forward flexion limited to 60 degrees or less; nor was the combined range of motion 120 degrees or less. In pertinent part, the Board notes that at a November 2011 VA-arranged examination the Veteran reported back pain, but stated that it did not result in limitation of walking. Nor did she experience falls as a result thereof. She did report stiffness, spasms, and decreased motion. She described her pain level as moderate, but indicated that it could be exacerbated by physical activity and stress; and it occurred spontaneously. She reported that pain resulted in limitation of motion which was described as trouble bending. Range of motion testing showed forward flexion to 90 degrees, with pain at 70 degrees; extension to 30 degrees, with pain at 10 degrees; right and left lateral flexion to 30 degrees, with pain at 30 degrees; and right and left lateral rotation to 30 degrees with no notation of pain. There was no additional limitation of motion following repetitive testing, and the examiner stated that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Nothing in the other evidence of record pertaining to this period demonstrates that the Veteran had limitation of motion to the extent necessary for a rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, to include during flare-ups. Moreover, she has not contended, nor does the record otherwise reflect, that she would have such limitation but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) The Board acknowledges, as noted above, that there was evidence of muscle spasm, to include at the November 2011 VA examination. However, the evidence does not reflect the spasm resulted in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As noted, the Veteran reported at the November 2011 VA examination that her back pain did not result in limitation of walking or falls. Further, the examiner noted that she walked with a normal gait, and that there was symmetry of spinal motion with normal curves of the spine. Nothing in the other evidence of record for this period demonstrates abnormal gait and/or abnormal spinal contour. As discussed in greater detail below, the Board finds that the thoracolumbar spine disability does not warrant consideration of any other schedular criteria, nor additional separate rating(s) for associated neurologic impairment. In light of the foregoing, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for thoracolumbar spine disability for the period from March 1, 2012 to May 10, 2018, to include on the basis of an additional "staged" rating. The appeal of this issue is denied. 2. Entitlement to a rating in excess of 20 percent for thoracolumbar spine disability from May 10, 2018 to June 23, 2021 For the period from May 10, 2018 to June 23, 2021 the Veteran's service-connected thoracolumbar spine disability is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less. Nor is it shown to have been manifested by favorable ankylosis of the entire thoracolumbar spine. The Veteran reported at a May 2018 VA examination that she experienced severe pain and back spasms. She also reported flare-ups that occurred once per week, during which she experienced severe pain rated as 9/10, lasting 4 to 5 hours. Further, she indicated she could not walk, stand, or sit for long periods. However, range of motion testing showed forward flexion to 70 degrees with no additional limitation following repetitive motion testing. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repeated use over time and during flare-ups. Moreover, the examiner stated that it was not possible, without resorting to mere speculation, to estimate loss of range of motion during such times, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board notes that the May 2018 VA examiner explicitly found that the Veteran's thoracolumbar spine was not manifested by ankylosis. Nor is such a finding demonstrated by the other evidence of record. Further, the record does not reflect functional impairment that is the equivalent of favorable and/or unfavorable ankylosis under the General Rating Formula for Diseases and Injuries of the Spine, to include during flare-ups. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). As a general matter, the Board notes that ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, the range of motion findings on the May 2018 examination do not reflect functional impairment that is the equivalent of immobility and consolidation of the spine, to include during flare-ups. In addition to forward flexion to 70 degrees, she also had extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation, all to 20 degrees. Nothing in the other evidence of record for the period from May 10, 2018 to June 23, 2021 reflects impairment that would warrant a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. Moreover, the record does not reflect she would have such impairment during flare-ups or but for the use of medication. As explained in greater detail below, no other schedular criteria are implicated, nor are additional separate rating(s) for neurologic impairment. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for thoracolumbar spine disability from May 10, 2018 to June 23, 2021 to include on the basis of further "staged" ratings. The appeal of this issue is denied. 3. Entitlement to a rating in excess of 40 percent for thoracolumbar spine disability from June 24, 2021 For the period from June 24, 2021, the Veteran's thoracolumbar spine disability was not manifested by unfavorable ankylosis. In pertinent part, the June 2021 VA examination explicitly found that she did not have ankylosis, and no evidence to the contrary is otherwise of record. Further, the record does not reflect the functional equivalent of unfavorable ankylosis, to include as a result of flare-ups. For example, the June 2021 examination did note complaints of worsening pain with prolonged sitting, standing, and walking. Nevertheless, she still had forward flexion to 55 degrees, extension to 5 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. No passive range of motion testing was conducted because it was contraindicated due to risk of injury. See Correia v. McDonald, 28 Vet. App. 158 (2016). It was noted there was pain on active motion, but no indication of such in weight bearing or non-weight bearing. Id. The examiner did estimate that during flare-ups all ranges of motion would be limited to 5 degrees. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Nevertheless, this still does not demonstrate the functional equivalent of unfavorable ankylosis, as defined by pertinent VA regulations, so as to warrant a rating in excess of 40 percent under General Rating Formula for Diseases and Injuries of the Spine. The Veteran has not identified any inaccuracies with respect to the findings of the June 2021 VA examination. Nor has she reported her service-connected thoracolumbar spine disability has increased in severity since that examination. No ankylosis, or the functional equivalent thereof, is demonstrated by the other evidence of record at any time during the period from June 24, 2021. Moreover, the Veteran has not contended, nor does the record otherwise reflect, that she would have such impairment but for the use of medication. For these reasons, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for thoracolumbar spine disability from June 24, 2021, to include on the basis of additional "staged" ratings. As such, the appeal as to this claim is denied. In arriving at the foregoing conclusions, the Board has also considered the applicability of the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, both the November 2011 and May 2018 VA examinations found that the Veteran did not have IVDS. The June 2021 VA examination did find IVDS. However, for purposes of the Formula, an incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, a thorough review of the record does not reflect that the Veteran's lumbar spine has been manifested by incapacitating episodes as defined by VA regulation. In other words, while the Board does not doubt the Veteran's account that she has experienced flare-ups of pain, the record does not reflect she has had bed rest prescribed by a physician. Moreover, the June 2021 VA examination explicitly found she did not have incapacitating episodes. As an additional matter, the Board observes that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic impairments should be rated separately under the appropriate Diagnostic Code. See 38 C.F.R. § 4.71a. Here, the record, including the VA examinations in this case, does not reflect she has associated neurologic impairment other than the already separately evaluated radiculopathy of the right and left lower extremities (the evaluations of which is not part of this appeal). No additional, separate ratings are warranted. Finally, the Board notes that revisions were made to some of the rating criteria used to evaluate disabilities of the musculoskeletal system and muscle injuries, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). However, the revisions made no substantive changes to the rating criteria contained in General Rating Formula for Diseases and Injuries of the Spine and have no impact on the outcome of the Veteran's appeal. Granted, the Formula for Rating Intervertebral Disc Syndrome Based Upon Incapacitating Episodes was revised to clarify that it only applies to IVDS and not degenerative disc disease. Nevertheless, the fact remains she did not have incapacitating episodes as defined by VA regulations, and no change was made to that definition in the revisions. 4. Entitlement to a rating in excess of 20 percent for service-connected right shoulder disability At the outset, the Board notes that the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for disabilities of the shoulder and arm, were amended effective February 7, 2021. Prior to February 7, 2021, the criteria set forth in Diagnostic Code 5201, for the major arm, provided a 20 percent disability rating for limitation of motion at the shoulder level; a 30 percent disability rating for limitation of motion to midway between the side and shoulder level; and a 40 percent disability rating for motion limited to 25 degrees from the side. Beginning February 7, 2021, the criteria set forth in Diagnostic Code 5201, for the major arm, provide a 20 percent disability rating for limitation of motion at the shoulder level (defined as flexion and/or abduction limited to 90 degrees); a 30 percent disability rating for limitation of motion to midway between the side and shoulder level (defined as flexion and/or abduction limited to 45 degrees); and a 40 percent disability rating for motion limited to 25 degrees from the side. 85 Fed. Reg. 76543, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201). Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I (2020). Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I (2020). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. Thus, under such circumstances, VA must generally consider the claim for a higher rating pursuant to both the former and revised regulations. See VAOPGCREC 3-2000, 65 Fed. Reg. 33, 422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Here, however, the Board notes that the changes implemented on February 7, 2021 did not substantively change Diagnostic Code 5201. Rather, the amendments merely clarified "shoulder level" as flexion and/or abduction limited to 90 degrees, and "midway between the side and shoulder level" as flexion and/or abduction limited to 45 degrees. In the present case, the Veteran's right shoulder motion is not shown to have been limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) at any time during the pendency of her claim, even when taking into account her complaints of pain. For example, at the November 2011 VA examination she reported the right shoulder was manifested by weakness, stiffness, giving way, tenderness, and pain. However, she indicated that she did not experience swelling, heat, redness, lack of endurance, locking, fatigability, deformity, drainage, effusion, subluxation, or dislocation. She reported experiencing flare-ups as often as 5 times per day, each time lasting for 3 hours. Pain was 6/10. On examination, the right shoulder had flexion to 180 degrees, with pain at 140 degrees; abduction to 180 degrees, with pain at 120 degrees; and external and internal rotation both to 90 degrees, with no indication of pain. There was no additional limitation of motion following repetitive testing. Moreover, the examiner stated that joint function of the right shoulder was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Treatment records dated in June 2016 note full active and passive range of motion of the right shoulder. At a May 2018 VA examination, the Veteran reported that she experienced pain, popping, weakness, tingling, and numbness periodically in the right shoulder; as well as cramps when she overextended her hand to her back. She also reported flare-ups during which she had a hard time lifting or doing any work that involved shoulder strain. Other noted functional loss included some limitations on exercise, lifting over 18 pounds, and difficulty raising the arms above shoulder. Range of motion testing showed forward flexion of the right shoulder to 160 degrees, abduction to 170 degrees, and external and internal rotation to 80 degrees. Pain was noted in all ranges of motion, as well as in weight bearing. There was no additional loss of motion following repetitive use testing. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repeated use over time and during flare-ups. The examiner further stated that it was not possible, without resorting to mere speculation, to estimate loss of range of motion during such, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. At the February 2021 Board hearing, the Veteran reported she could move her right shoulder "not far" above shoulder level. See Transcript p. 7. As a demonstration, she held her right shoulder at roughly the equivalent of shoulder level. Id. At a June 2021 VA examination, the Veteran reported right shoulder clicking and popping and frequent intermittent pain. She also reported daily flare-ups of dull pain, which lasted 10 to 20 minutes. In addition, it was noted that she was unable to perform heavy lifting, including carrying a purse on the right shoulder, and she was unable to reach her right arm overhead. Range of motion testing of the right shoulder showed flexion to 115 degrees, abduction to 105 degrees, internal rotation to 55 degrees, and external rotation to 45 degrees. It was indicated there was pain on active and passive motion, but not in weight bearing or non-weight bearing. There was no additional limitation of motion after repetitive use testing. Further, the examiner indicated the procured evidence (statements from the Veteran) suggested that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. The Veteran has not identified any inaccuracies with respect to the findings of the most recent VA examination. Nor has she reported that her right shoulder has increased in severity since that examination. In light of the foregoing, and with review of all of other evidence of record, the Board finds that the Veteran's right shoulder pain and other symptomatology has resulted in limitation of motion to the shoulder level, which is consistent with the current 20 percent evaluation under Diagnostic Code 5201. The right shoulder is not shown to have been limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) at any time during the pendency of her claim. Accordingly, a rating in excess of 20 percent is not warranted under Diagnostic Code 5201. The Board also finds that a rating in excess of 20 percent is not warranted under any of the other potentially applicable diagnostic codes for evaluating the shoulder. In pertinent part, the record, including the aforementioned VA examination reports, does not reflect that the right shoulder has been manifested by ankylosis as to warrant consideration of Diagnostic Code 5200, nor impairment of the humerus as to warrant consideration of Diagnostic Code 5202. The Board acknowledges there is evidence of impairment of the right clavicle. For example, even though a May 2018 VA examination found that such a condition was not suspected, X-rays taken of the right shoulder in conjunction with the examination noted that the Veteran was status-post resection of a portion of the distal clavicle. The more recent June 2021 VA examination found that she had nonunion of the right clavicle without loose movement, and that it affected her range of motion. Diagnostic Code 5203 provides that in cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved. Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent rating, while nonunion without loose movement warrants a 10 percent evaluation. Malunion of the clavicle or scapula may be assigned a 10 percent rating or may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. In short, Diagnostic Code 5203 does not provide for a rating in excess of 20 percent, which is the benefit being sought on appeal. Moreover, the findings of the June 2021 VA examination actually reflect a rating of no more than 10 percent would be warranted under this diagnostic code. That examination also indicated that the nonunion affected range of motion, which, as noted, the Board has found warrants no more than a 20 percent rating. For all these reasons, the Board finds the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for her service-connected right shoulder disability. The appeal of this issue is denied. 5. Entitlement to a rating in excess of 10 percent for seborrheic dermatitis and vaginal candidiasis The Veteran's service-connected seborrheic dermatitis and vaginal candidiasis has been rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7820-7806, as analogous to dermatitis or eczema. Diagnostic Code 7806 was revised during the pendency of this case, effective August 13, 2018. Under the former version of 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 were affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-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 are 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 twelve-month period. A 60 percent rating was warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period. Under the revised criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: 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 of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas 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 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court held in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016), that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed that decision, determining that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under former Diagnostic Code 7806 was generally not inclusive of topical corticosteroids. The Federal Circuit found that "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." Thus, according to the Federal Circuit, applications of topical corticosteroids do not all constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria. Therefore, the Board will consider both the old and new criteria and apply the more favorable of the two. That said, the Federal Circuit's interpretation of the term "systemic therapy" applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). In either case, both versions of Diagnostic Code 7806 require the pertinent skin condition to cover 20 to 40 percent of exposed areas or the whole body in order to qualify for a rating in excess of 10 percent. Here, the record reflects that the extent of the Veteran's seborrheic dermatitis and vaginal candidiasis fluctuated during the pendency of her claim, but never to the extent as to warrant a rating in excess of 10 percent. For example, a November 2011 VA examination noted sebhorra of the scalp, and the skin lesion coverage of the exposed area was 20 percent, and was 2 percent relative to the whole body. A May 2018 VA examination found that the seborrheic dermatitis covered less than 5 percent of the whole body area, and none of the exposed area. Further, the Veteran stated that it had been years since she had the vaginal candidiasis and currently had no symptoms. A subsequent October 2018 VA examination found that the service-connected skin disability covered less than 5 percent of the whole body and exposed areas. The most recent VA examination of June 2021 found that the service-connected skin disability was without any visible characteristic lesions at the time of the examination. Nothing in the other evidence of record reflects that the conditions at issue covered more than 20 percent of the whole body or exposed areas at any time during the period on appeal. The Board acknowledges the Veteran's description of various symptoms associated with her service-connected skin disabilities, to include at the February 2021 hearing. For example, she described the conditions as being manifested by peeling/scaliness and itchiness at the hearing. See Transcript pp. 10-11. In addition, exfoliation was noted on the November 2011 VA examination. The more recent June 2021 VA examination noted constant pruritus of the scalp with intermittent scab formation, flaking and bleeding; as well as intermittent vaginal itching and discharge. However, as noted, the schedular criteria focuses on the extent to which the condition(s) at issue cover(s) the whole body or exposed areas, regardless of the specific symptomatology. The Board further finds that the record does not reflect that the Veteran's service-connected seborrheic dermatitis and/or vaginal candidiasis was treated by way of systemic therapy at any time during the pendency of the claim, under either the Federal Circuit's definition in Johnson, supra, nor as defined by the revised rating criteria. The evidence, including the aforementioned VA examination reports, does note that treatment consisted of constant or near-constant use of topical corticosteroids. However, nothing in the record demonstrates that such use was to an extent as to affect the body as a whole. The Veteran also indicated at the February 2021 hearing that her treatment had been topical in nature. In addition, the record, including the June 2021 VA examination report, does not demonstrate the type of systemic therapy detailed in the revised rating criteria. In light of the foregoing, the Board finds that the Veteran has not met or more nearly approximated the criteria for a rating in excess of 10 percent under the old or revised criteria. As such, the preponderance of the evidence is against the claim. The appeal of this issue must be denied. 6. Entitlement to a compensable rating for service-connected right shoulder scars prior to May 10, 2018 7. Entitlement to a rating in excess of 20 percent for service-connected right shoulder scars As with the criteria for Diagnostic Code 7806, revisions were made to the rating criteria for evaluating scars effective August 13, 2018. Initially, the Board notes that the current 20 percent rating from May 10, 2018 was assigned based upon VA examination findings of 3 painful scars of the right shoulder in accord with Diagnostic Code 7804. Diagnostic Code 7804 (before and after the 2018 amendments) provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful, and a 30 percent disability rating is assigned for 5 or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Here, the Board acknowledges that the Veteran reported that her right shoulder scars were not painful at the November 2011 VA examination, and there was no skin breakdown. However, she did report that the scars were itchy. Certain scars were also noted to be itchy at the May 2018 VA examination. She also indicated that all of the scars were very itchy at the February 2021 hearing; and that when you touched them they were sore, tingly, and "feel meaty." The June 2021 VA examination also noted that she reported her scars were itchy. The Board acknowledges that the November 2011 and June 2021 VA examinations included findings that the right shoulder scars were not painful, while the May 2018 VA examination found that only 3 of the scars were painful. All of these examinations included findings that none of the scars were unstable. Nevertheless, the Veteran has consistently indicated that all of her right shoulder scars are itchy. Resolving reasonable doubt in her favor, the Board finds that her impairment in that regard should be treated as analogous to pain. Although the November 2011 VA examination indicated there were 3 scars of the right shoulder, the subsequent May 2018 and June 2021 examinations indicated there were 5 such scars. In light of the foregoing, the Board finds the Veteran's disability picture for the right shoulder scars has more nearly approximated impairment analogous to the presence of five painful scars throughout the appeal period from March 1, 2012. As such, a rating of 30 percent is warranted for this period under Diagnostic Code 7804. No additional rating is warranted based on an unstable scar, as the record consistent reflects that none of the right shoulder scars are unstable. The Board further finds that a rating in excess of 30 percent is not warranted for shoulder scars, to include as a "staged" rating(s). Diagnostic Code 7804 does not provide for such a rating. With respect to other potentially applicable criteria, the Board notes that Diagnostic Code 7800 applies to scars and other disfigurement of the head, face, or neck. As such, it is clearly not applicable to scars of the right shoulder. Diagnostic Codes 7801 and 7802 set out criteria for evaluating scars other than of the head, face, or neck. As such, they are at least potentially applicable. However, Diagnostic Code 7802 does not provide for a rating in excess of 10 percent. Diagnostic Code 7801 provides that scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when the scars cover an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is warranted when the area or areas exceed 12 square inches (77 sq. cm.). A 30 percent rating requires an area or areas exceeding 72 square inches (465 sq. cm.), while a 40 percent rating requires an area or areas exceeding 144 square inches (929 sq. cm.). Here, the shoulder scars do not cover an area or areas exceeding 144 square inches (929 sq. cm.). The November 2011 VA examination noted the right shoulder scars measured 4.5 x 0.6 cm; and indicated that the 2 other scars measured a total of 1 cm x 0.3 cm. The May 2018 VA examination noted the right shoulder scars measured 3 cm x 1 cm; 5 cm x 2 cm; 3 cm x 0.5 cm; 3.5 cm x 0.25 cm; and 2 cm x 0.25 cm. The most recent VA examination of June 2021 noted the right shoulder scars measured 5 cm x 2 cm; 3 cm x 0.5 cm; 0.5 cm x 7.5 cm; 1 cm. x 0.5 cm; and 4 cm x 0.5 cm. None of these measurements demonstrates the right shoulder scars exceed an area or areas that would warrant a rating in excess of 30 percent under Diagnostic Code 7801. Finally, Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code. Here, the record does not reflect that the right shoulder scars have resulted in any such disabling effects. For example, the November 2011 VA examination found that the scars did not limit the Veteran's motion, and there was no limitation of function due to the scar. The May 2018 and June 2021 VA examination also found there was no limitation of function due to the right shoulder scars. No such impairment is indicated by the other evidence of record. Moreover, to evaluate the scars based upon limitation of motion would be a violation of the rule against pyramiding as the service-connected right shoulder disability is evaluated based upon such impairment. For all of these reasons, the Board finds that a rating in excess of 30 percent is not warranted for the shoulder scars. To that extent, the appeal of this issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.