Citation Nr: 21005349 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-28 698 DATE: February 1, 2021 ORDER An initial rating in excess of 10 percent for a left wrist disorder is denied. An initial compensable rating for bilateral tinea pedis is denied. REMANDED The claim of entitlement to an initial compensable rating for limitation of extension of the left forearm is remanded. The claim of entitlement to an initial rating in excess of 10 percent for limitation of the left forearm prior to March 8, 2017 is remanded. The claim of entitlement to a rating in excess of 20 percent for limitation of flexion of the left forearm for the period beginning March 8, 2017 is remanded. FINDINGS OF FACT 1. The Veteran’s left wrist disorder is manifested by pain, limitation of motion, and weakness; favorable ankylosis of the non-dominant hand in 20 degrees to 30 degrees dorsiflexion is not shown. 2. The Veteran’s bilateral tinea pedis is manifested by skin itchiness, dryness, and irritation covering less than five percent of total body area and zero percent of exposed body area. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left wrist disorder have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5215. 2. The criteria for an initial compensable rating for bilateral tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1961 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas (hereinafter, Agency of Original Jurisdiction (AOJ)). With regard to the left forearm issues, these issues were previously before the Board in December 2016, December 2017, and November 2019 at which times they were remanded for additional development. With regard to the left wrist and tinea pedis issues, in a December 2017 decision, the Board denied an initial rating in excess of 10 percent for the left wrist disorder and denied an initial compensable rating for bilateral tinea pedis. In a January 2019 Memorandum Decision, the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s decision regarding these issues and remanded the issues to the Board for reconsideration of the claims. Pursuant to the January 2019 Memorandum Decision, in November 2019, the Board remanded the claims for additional development, to include obtaining updated VA examinations to assess the current severity of his left wrist disability and bilateral tinea pedis. Upon remand, the Veteran was afforded VA examinations in January 2020. The Board finds that the AOJ substantially complied with the remand instructions, and appellate adjudication on these issues may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). In so finding, the Board notes that in order to be adequate, VA joint examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The most recent VA examination of the left wrist in January 2020 is responsive to the guidance provided in Correia and Sharp. In this case, the Veteran reported pain with both weight-bearing and non-weight-bearing of the left wrist. Furthermore, although passive range of motion was not specifically measured, it is reasonable to assume that assisted motion would be less limiting than active motion, and therefore, the failure to measure passive motion is harmless error. Moreover, the Veteran did not report flare-ups during such examination and as discussed below, the Veteran’s past descriptions of flare-ups were not significant to support a higher rating. Accordingly, the Board finds that a remand for a new examination under Correia or Sharp would serve no useful purpose. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Wrist The Veteran is seeking an initial rating higher than 10 percent for his service-connected left wrist disability. Notably, the Veteran is right-handed; thus, his left wrist is his minor extremity. 38 C.F.R. § 4.69. The Veteran’s left wrist disability is rated under 38 C.F.R. § 4.71, Diagnostic Code 5215. Diagnostic Code 5215 provides for the assignment of a 10 percent disability rating with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. The 10 percent rating is the maximum rating provided under Diagnostic Code 5215. Diagnostic Code 5214, which is the only other diagnostic code which specifically references the wrist, requires favorable ankylosis in 20 to 30 degrees of dorsiflexion for a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Additional compensation for functional loss is not applicable in this case because the Veteran is already in receipt of the highest rating available for limitation of motion of the wrist. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis). Turning to the facts of the case, the Veteran filed his initial claim for service connection in September 2010. At the February 2012 VA examination, the Veteran reported decreased strength in his left wrist. Range of motion testing revealed left palmar flexion to 20 degrees and left dorsiflexion to 50 degrees; pain was noted throughout range of motion. In terms of functional loss, the examiner noted less movement than normal, weakened movement, incoordination, and pain on movement in the left wrist. The Veteran denied having flare ups of his symptoms and was able to perform repetitive use testing with at least three repetitions with no additional loss in function or motion. The examiner noted localized tenderness/pain on palpation of the joint and rated the Veteran’s left wrist strength as 4/5. There was no evidence of ankylosis, and contemporaneous diagnostic testing revealed normal wrist. At the August 2017 VA examination, the Veteran reported increased pain and limited range of motion in the left wrist. In terms of flare ups, the Veteran stated that he had increased pain with more limited range of motion. Regarding functional loss, he described having trouble lifting and pushing or pulling with his left wrist. Range of motion testing revealed palmar flexion to 60 degrees and dorsiflexion to 50 degrees. The examiner noted that pain was present on the exam and caused functional loss in terms of lifting. There was evidence of pain with weight bearing and non-weight-bearing, but no evidence of localized tenderness or pain on palpation, nor was there evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner also found that pain, weakness, and lack of endurance significantly limited functional ability with repeated use over time and during flare ups. Muscle strength was rated 4/5 upon flexion and extension of the left wrist. However, there was no evidence of muscle atrophy, ankylosis, or arthritis. Most recently, at the January 2020 VA examination, the Veteran reported having limited range of motion in the left wrist. In terms of functional impairment, the Veteran described being unable to lift objects heavier than 25 pounds; additionally, his arm was limited in range of motion. He denied having flare ups of his symptoms. Range of motion testing revealed palmar flexion to 20 degrees and dorsiflexion to 10 degrees. The examiner observed pain upon palmar flexion, which caused functional loss. There was also evidence of pain with weight bearing and non-weight-bearing and objective evidence of crepitus. However, there was no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that pain significantly limited functional ability by about an additional five degrees in range of motion with repeated use over a period of time. While there was no evidence of either muscle atrophy or ankylosis, the Veteran’s left wrist strength was diminished to 4/5. The contemporaneous peripheral nerve examination revealed no evidence of a residual nerve injury secondary to the left wrist disability. Throughout the appeal period, the Veteran sought treatment for his left wrist disability. Medical treatment records document the Veteran’s reports of periodic pain and weakness of the left wrist. While the Veteran demonstrated normal strength upon wrist flexion and extension, treating physicians noted some tenderness and minimal swelling around the wrist. His treatment included occupational therapy along with both topical and oral pain medications. There was no lay or objective medical evidence of ankylosis or neurological impairment of the left wrist. Upon review of the evidence, the Board finds that an initial rating higher than 10 percent is not warranted for the service-connected left wrist disorder. As previously noted, the Veteran’s 10 percent rating is the maximum schedular rating for limitation of range of motion of the wrist. In order to warrant a higher rating, there must be evidence of ankylosis of the left wrist. 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215. Here, the medical evidence of record contains no evidence that the Veteran has any favorable or unfavorable ankylosis of the left wrist. During the appeal period, the Veteran was afforded several VA examinations to determine the severity of his left wrist disorder; each examiner indicated, upon examination and review of the claims folder, that the Veteran had no ankylosis of the left wrist. See VA Examinations dated February 2012, March 2017, August 2017, and January 2020. Rather, the Veteran has demonstrated active, albeit limited, movement in all planes of motion. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)). Here, even when considering the Veteran’s additional limitations with repeated use and during flare-ups, there is no lay or medical evidence to support a finding that the Veteran’s wrist was immobile or fixed in any certain position. In the absence of evidence of favorable ankylosis of the non-dominant hand in 20 degrees to 30 degrees dorsiflexion, a rating in excess of 10 percent for the Veteran’s left wrist disorder is not warranted on a schedular basis. The Board also finds that a separate rating is not warranted for any neurological impairment as the lay and medical evidence fails to establish that the Veteran manifests any neurological deficits secondary to his left wrist disability. Most often, the Veteran reported pain and soreness in his left wrist; he specifically denied numbness and tingling in the left wrist. Early in the appeal period, the Veteran was diagnosed with essential tremors of the left hand. Initially, the Veteran’s treating physicians were unsure of the etiology. However, they ultimately associated his tremors with his blood pressure and increased the dosage of his blood pressure medication to alleviate the tremors. His physicians also noted that while the Veteran has demonstrated some “parkinsonian features” in the past, he did not report symptoms consistent with neurological deficits in the left wrist. Moreover, numerous VA examiners have found that the Veteran did not endorse any neurological impairment secondary to his left wrist disability. Accordingly, a separate rating pursuant to 38 C.F.R. § 4.124a is not warranted. The Board has also considered whether referral for an extraschedular rating is warranted and concludes that it is not. The initial consideration for determining whether extraschedular referral is warranted is if the evidence presents such an exceptional disability picture so that the available schedular evaluation is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has primarily reported symptoms of pain, limited range of motion, and weakness related to his left wrist disability. The discussion above reflects that the symptomatology associated with the Veteran’s left wrist disability - namely, pain and weakness with limitation of motion - is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. 38 C.F.R. § 4.115a. Accordingly, extraschedular referral is not warranted because the available schedular evaluation is adequate. In light of the foregoing, the Board finds that a rating higher than 10 percent is not warranted for the service-connected left wrist disability. In so finding, all potentially relevant rating codes have been considered and evaluated. The preponderance of the evidence weighs against a finding that the frequency, severity, and duration of the Veteran’s symptoms resulted in the level of impairment contemplated for a 20 percent rating. There is no competent and credible evidence of favorable ankylosis of the non-dominant hand in 20 degrees to 30 degrees dorsiflexion to support a higher rating. Accordingly, the claim is denied. Bilateral Tinea Pedis During the appeal period, the Veteran’s bilateral tinea pedis has been rated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813. Amendments to the criteria for rating disabilities of the skin were published in July 2018. See 38 C.F.R. § 4.118. The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran’s, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. The former version of DC 7813 provides that dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Here, as the evidence demonstrates that the Veteran’s disability did not manifest in either disfigurement or scars, the Veteran’s tinea pedis has been rated pursuant to DC 7806. The former version of DC 7806 provides that a 10 percent rating is warranted for a skin disorder that affects at least 5 percent, but less than 20 percent, of the entire body, or of exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted for a skin disorder that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted for a skin disorder that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Under the current version of the regulation, conditions formerly evaluated under DCs 7813 and 7806 are now rated under the General Rating Formula for the Skin. Under that Formula, a 10 percent rating is warranted for 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 if 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 have been required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or if systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs have been 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 if constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs have been required over the past 12-month period. Also, under the new General Rating Formula for the Skin, the rating criteria notes that for the purposes of that 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. Turning to the facts of the case, the Veteran filed a claim for service connection for tinea pedis in September 2010. At the February 2012 VA examination, the Veteran was diagnosed with a rash on his feet. The Veteran reported treating his rash with an over-the-counter cream and the examiner indicated treatment by topical corticosteroids for six weeks or more but not constant or near constant. The examiner did not indicate the percentage of surface area tinea pedis covered. Instead, the examiner described it as present between the first and second toes bilateral, between the second and third toes on the right foot, between the fourth and fifth toes bilaterally, and severe fungus of the first, fourth, and fifth toenails on the left foot. In providing an opinion, the examiner noted that tinea pedis and toenail fungus covered less than one percent of the Veteran’s total body and zero percent of his exposed body. At the March 2017 VA examination, the examiner noted that the Veteran used over-the-counter topical creams and lotions to treat tinea pedis for six weeks or more, but not constant or near constant. The Veteran reported that he did not recall the names of the lotions, but that they helped more than his prescription for tinea pedis. Upon examination, the examiner noted that tinea pedis covered less than five percent of his total body area and none of his exposed body area. Most recently, at the January 2020 VA examination, the Veteran reported that his tinea pedis waxes and wanes but worsens during the summer months. The Veteran denied using any medications or creams for his condition. However, upon review of the record, the examiner opined that the topical corticosteroids the Veteran used during the appeal period did not constitute systemic therapy and they did not affect the Veteran’s body as a whole. Upon examination, the examiner found that the Veteran’s tinea pedis covered less than five percent of his total body area and none of his exposed body area. Upon consideration of the evidence, the Board finds that a compensable rating for bilateral tinea pedis is not warranted. In so finding, the Board notes that the VA examinations of record indicate that tinea pedis covers less than five percent of the Veteran’s entire body and none of his exposed areas. Additionally, the February 2012 and March 2017 VA examinations both indicate treatment of tinea pedis by over-the-counter creams and lotions. The Board notes that in Johnson v. Shulkin, 862 F. 3d 1351 (Fed. Cir. 2017), the U.S. Federal Circuit Court of Appeals determined that the use of topical corticosteroids does not automatically mean systemic therapy, and a topical steroid could be either systemic or topical based on the circumstances of each case. In this case, the Veteran had use of over-the-counter creams and lotions for six weeks or more, but not constantly or near constantly. Notably, neither the Veteran nor his representative has asserted that the use of such topical medications was administered on a large enough scale to affect the body as a whole, which would fit the definition of systemic therapy. Additionally, the January 2020 VA examiner clarified that the Veteran’s creams and lotions were not systemic therapy and did not affect his body as a whole. Thus, the Board finds that the evidence reflects the Veteran has been treated with topical therapy in this case, rather than systemic therapy. In the absence of tinea pedis that involves at least five percent of the entire body or at least five percent of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, a rating of 10 percent is not warranted. Further, there is no medical or lay evidence that indicate a rating under Diagnostic Codes 7801, 7802, 7803, or 7805 for scarring is appropriate. In this respect, the Veteran has described symptoms of skin itchiness, dryness, irritation, redness, and whelps which is contemplated in his assigned rating, but he has not described this skin condition as affecting at least five percent of his entire body or resulting in permanent scar disability. In this case, dermatitis is the predominant disability, and Diagnostic Code 7806 is the correct code for rating the Veteran’s tinea pedis. Lastly, the Board has considered whether referral on an extraschedular basis is warranted pursuant to Thun, but finds that the schedular criteria adequately encompasses the Veteran’s symptoms. Specifically, there is no characteristic or manifestation shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. 38 C.F.R. § 4.115a. Accordingly, extraschedular referral is not warranted because the available schedular evaluation is adequate. In sum, a compensable rating is not warranted and there is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.118; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased Rating for Limitation of Extension of the Left Forearm Increased Rating for Limitation of Flexion of the Left Forearm prior to March 8, 2017 Increased Rating for Limitation of Flexion of the Left Forearm from March 8, 2017 While further delay is regrettable, the Board finds that remand is required of the increased rating issues related to the Veteran’s service-connected left forearm disability. Notably, there appears to be a discrepancy as to whether the Veteran manifests any neurological impairment secondary to his left forearm. At the February 2018 VA examination, the VA examiner diagnosed laceration of the left posterior interosseous nerve with incomplete paralysis of the nerve, apparently secondary to the service-connected left forearm disability. However, a January 2020 VA examination found that the Veteran did not manifest any neurological impairment related to the left forearm. The Board finds that remand is required to rectify this discrepancy and assign the Veteran the appropriate rating based on both the orthopedic and neurological manifestations, if any, of his left forearm disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left forearm disorders, including limitation of extension and limitation of flexion. The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating the Veteran’s disorders under the rating criteria. In doing so, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are require), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare ups, and the degree of functional loss during flare ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are require), or the examiner (does not have the knowledge or training). Finally, the examiner should reconcile the March 2017 VA examination in which the Veteran indicated experiencing left elbow flare-ups that caused the elbow to “become so sore I cannot move it and is weaker and more stiff” with the February 2018 and January 2020 VA examinations indicating that the Veteran reported no left elbow flare-ups. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.