Citation Nr: 21009781 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-26 997 DATE: February 23, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for service-connected right foot, status post-bunionectomy, is granted. Entitlement to an initial, compensable rating for service-connected acne rosacea of the face and acne on the back is denied. From July 29, 2015, a 10 percent rating, but no higher, for service-connected acne rosacea of the face and acne on the back is granted. FINDINGS OF FACT 1. Throughout the appeal period, the lay and medical evidence shows that the Veteran’s service-connected right foot, status post bunionectomy has been manifest by residual hallux valgus with moderate to severe pain and functional limitation in his right great toe and foot. 2. From June 1, 2011 to July 29, 2015, the lay and medical evidence shows that the Veteran’s service-connected acne rosacea and acne disability was described as superficial, recurrent lesions on his face and back that occurred on a weekly basis. 3. From July 29, 2015, the lay evidence shows that the Veteran’s service-connected acne rosacea and acne disability was manifest by flare-ups one to two times a month with deep and painful acne on his face and inflamed, pus-filled cysts on his back. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for service-connected right foot, status post-bunionectomy, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 5280. 2. The criteria for an initial, compensable rating for service-connected acne rosacea of the face and acne on the back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7828. 3. From July 29, 2015, the criteria for a 10 percent rating, but no higher, for service-connected acne rosacea of the face and acne on the back have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7828. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to May 2011. This appeal was previously before the Board in August 2018, at which time the Board, in part, remanded the claims remaining on appeal for additional evidentiary development. All requested development has been conducted and the claims have been returned for further consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (“Rating Schedule”), found in 38 C.F.R. § 4.1. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.10. The Board notes that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021 but the diagnostic codes under which the disabilities addressed in this decision were not changed. When there is a question as to which evaluation should be applied to a Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to an increased rating for service-connected right foot, status post bunionectomy In the June 2012 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for right foot, status post bunionectomy, effective June 1, 2011, and assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, DC 5280. The Veteran perfected an appeal as to the rating assigned to his right foot disability and, during the appeal period, the AOJ awarded an increased, 10 percent rating under DC 5280, effective June 2, 2015. See July 2020 rating decision. Therefore, the Board will consider whether a compensable rating is warranted prior to July 2015 and whether a rating in excess of 10 percent is warranted thereafter. The Veteran’s service-connected right foot, status post-bunionectomy, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe. A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, DC 5280. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The evidence shows that the Veteran injured the first metatarsophalangeal (MTP) joint on his right foot, i.e., the great toe, and had a bunionectomy during service. The relevant medical evidence reflects that the Veteran’s residual symptoms include remaining hallux valgus of the right foot with occasional decrease in range of motion of the 1st MTP joint, upward deviation of the right great toe, and tenderness to palpation of the 1st MTP joint and with movement of the right foot. See e.g., VA examinations dated June 2011 and December 2013; April 2016 VA treatment record. In May 2016, a clinician also noted that plantar and dorsiflexion of the 1st MTP joint resulted in mild pain. See May 2016 treatment record. Throughout the appeal period, the Veteran has reported having moderate to severe pain in his right foot with standing and walking. He has also described having severe cramping, throbbing, and burning pain in the right great toe and stated that he feels like his toe may dislocate. He has endorsed having flare-ups of 10/10 pain with increased activity and prolonged standing, such as working several hours or standing or walking more than 30 minutes, but he has otherwise described his pain as a 3/10 if he is not walking or standing. See e.g., June 2011 VA examination; September 2012 Veteran statement; December 2013 VA examination; July 2015 Veteran statement; treatment records dated April and May 2016; and July 2020 VA examination. Based on the foregoing, the Board finds an initial 10 percent rating is warranted for the service-connected right foot, status post bunionectomy disability, but the evidence weighs against assigning a rating in excess of 10 percent at any point during the appeal period. At the outset, the Board notes that the AOJ awarded the increased 10 percent rating, effective June 2, 2015, based upon evidence of painful motion. See July 2020 rating decision. However, the Board’s review of the claims file reveals evidence of pain in the right great toe and right foot throughout the appeal period, including as early as June 2011 and thereafter. As noted, the medical evidence shows the Veteran has consistently expereinced pain in the 1st MTP joint and right foot upon palpation and movement of the foot on objective evaluation and the Veteran has also consistently reported having pain with increased use of the foot. Under DC 5280, a 10 percent rating is warranted for hallux valgus that has been operated on with resection of the metatarsal head and that is severe and equivalent to amputation of the great toe. In this case, the evidence shows the Veteran has experienced moderate to severe pain and resulting functional impairment in his right great toe and foot following the bunionectomy throughout the appeal period, which is consistent with the criteria contemplated by the 10 percent rating under DC 5258. Therefore, the Board finds a 10 percent rating is warranted throughout the appeal period. A 10 percent rating is the maximum rating provided under DC 5280 and, thus, a rating in excess of 10 percent is available under that Diagnostic Code. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. In this case, the Veteran’s residual hallux valgus is specifically listed in the rating schedule under DC 5280 and the evidence does not reflect that he has any symptoms associated with the service-connected disability that are not contemplated by the 10 percent rating currently assigned and warrant a separate rating under another diagnostic code. In this regard, the record reflects that, in May 2016, the examining clinician diagnosed the Veteran with lesser metatarsalgia after pain was elicited when palpating the submetatarsal area of the first and second MTP joint of the right foot. The examiner also noted there was evidence of hammertoe on the second toe on the right foot. See May 2016 treatment record. While there is evidence of metatarsalgia and hammertoe in the Veteran’s right foot, the Board notes that the evidence does not reflect that those disabilities are due to or aggravated by the Veteran’s service-connected right foot, status post bunionectomy disability. Even if the Board assumed that the diagnosis of metatarsalgia is associated with the Veteran’s service-connected disability, the Board finds that assigning a separate rating under DC 5279 would amount to pyramiding in this case. Metatarsalgia is defined as pain and tenderness in the metatarsal region. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1145 (32nd ed. 2012). In this case, while the May 2016 VA examiner appears to have rendered a diagnosis of metatarsalgia based on the evidence of pain to palpation of the sub-metatarsal area of the first and second MTP joints on the right foot, the 10 percent rating currently assigned under DC 5280 is based upon the objective evidence of tenderness to palpation and pain with movement of the 1st MTP joint, as well as pain with movement of the right foot, in general, and the Veteran’s report of having moderate to severe pain in his right foot with standing, walking, and increased activity. The evidence of record does not sufficiently establish that the pain attributed to the diagnosis of metatarsalgia is a distinct manifestation from the right foot and toe pain already being compensated. The Board also finds probative that the other evidence of record does not show that the Veteran has metatarsalgia in his right foot, to include as due to his service-connected status post bunionectomy disability. See e.g., July 2020 VA examination. Therefore, assigning a separate rating for metatarsalgia under DC 5279 is not appropriate in this case, as such would amount to pyramiding. See 38 C.F.R. § 4.14. As for the hammertoe disability noted in May 2016, the Board notes that there is no indication that the hammertoe noted on the right foot is a result of or aggravated by the Veteran’s service-connected right foot, status post bunionectomy. Even if the Board assumed, arguendo, that the hammertoe is related to the service-connected disability in this case, DC 5282 provides a noncompensable rating where there are hammertoes of single toes and a maximum 10 percent rating when there is hammer toe, without claw foot, of all toes unilaterally. Therefore, as the May 2016 clinician only noted hammertoe on the second toe on the right foot, a compensable rating is not warranted under DC 5282. The evidence does not show that the Veteran’s disability has resulted in pes planus, weak foot, acquired pes cavus/claw foot, hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones. Therefore, DCs 5276, 5277, 5278, 5281, and 5283 are not applicable in this case. While ratings higher than 10 percent are available under DC 5284, which generally evaluates other foot injuries, the Board again notes that the Veteran’s service-connected right foot, status post-bunionectomy, is manifest by hallux valgus, which is specifically contemplated by DC 5280. See Copeland, supra. Further, the Board again notes that the pain and functional limitation the Veteran experiences as a result of his service-connected right foot disability is adequately contemplated by the 10 percent rating currently assigned. Accordingly, the Board finds the preponderance of the evidence supports the grant of an initial 10 percent rating for service-connected right foot, status post bunionectomy, but the evidence does not support a rating in excess of 10 percent at any point during the appeal period. In making this determination, the Board has considered the lay and medical evidence of record and resolved all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial, compensable rating for service-connected acne rosacea on face and acne on the upper back In the June 2012 rating decision on appeal, the AOJ granted service connection for acne rosacea with acne on the upper back, effective June 1, 2011, and assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, DC 7899-7828. The Veteran seeks an initial compensable rating for his acne rosacea and acne disability. Unlisted disabilities requiring analogy will be coded by the numbers of the most closely related body part and 99, while hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, with the additional code shown after the hyphen. See 38 C.F.R. § 4.27. The hyphenated diagnostic code assigned in this case indicates that acne rosacea on the face is rated by analogy to a miscellaneous skin disability under DC 7399, while acne on the upper back is evaluated under DC 7828. Under DC 7828, a noncompensable rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts, of any extent). A 10 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. The maximum 30 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. DC 7828 also allows for rating acne as disfigurement of the head, face, or neck under DC 7800 or scars under DCs 7801, 7802, 7803, 7804 or 7805 depending upon the predominant disability. The preponderance of the evidence reflects that the Veteran has consistently manifested lesions on his face that have been diagnosed as acne rosacea or simply rosacea, with additional lesions on his back that have been diagnosed as adult acne. At this juncture, the Board notes that, in addition to acne rosacea on his face and acne on his back, the Veteran has also manifested other skin disorders on other parts of his body, including dermatophytosis and tinea corporis between his breast muscle, tinea cruris, eczematous dermatitis on his hands and fingers, actinic keratosis of the ears and fingers dyshydrosis, and lentigo on his hand. See treatment records dated January 2012, August 2015, and March 2016; see also November 2016 VA examination. The record reflects that service connection has been established for eczema. See November 2016 rating decision. However, the evidence does not otherwise show or suggest that the other skin disorders reflected in the record are due to, aggravated by, or associated with the Veteran’s service-connected acne rosacea and acne disability. Therefore, the evidence of record regarding the Veteran’s eczema and other skin disorders will not be discussed or addressed in this decision. The relevant evidence dated in 2011 reflects that, during the June 2011 VA examination, the Veteran reported having recurrent erythema and rosacea-form lesions on his face that occurred weekly. He described the lesions as mild and stated that the medication he was taking had good results. There was no objective evidence of facial acne during the examination but, during outpatient treatment in December, the examining clinician noted superficial telangiectasis on and around his nose. See December 2011 treatment record. In this regard, the Veteran reported having had laser surgery to remove superficial veins on his nose in June which failed to improve the condition and had been bleeding from the surgical site. The diagnosis was rosacea. See December 2011 treatment record; see also treatment records dated July 2011 and January 2012. In a September 2012 statement, the Veteran stated that his acne was under control the day of the examination and that the severity of his condition was not evident during the examination. See September 2012 Veteran statement. During the December 2013 VA examination, the Veteran reported having increased redness, burning, and bumps on his eyes but there was no objective evidence of such during clinical evaluation and a relevant diagnosis was not rendered. Notably, the VA examiner did not state that the Veteran’s reported symptoms were associated with his service-connected acne rosacea and acne disability. With respect to his service-connected disability, the Veteran reported having continued breakouts one to two times a week with red bumps on his face and back. He reported taking medication to reduce the breakouts. The December 2013 VA examiner noted that the service-connected disability did not result in scarring or disfigurement of the head, face, or neck but, instead, described the Veteran’s acne as superficial. The examiner noted that the acne disability affected less than five percent of the Veteran’s exposed body surface area and total body surface area and resulted in minimal functional limitation. The examiner also noted the Veteran used oral medication and a topical gel to treat his acne. In a July 2015 statement, the Veteran reported having flare-ups of acne once a month that were manifested by deep and painful acne on his face and neck and large inflamed, red, pus-filed cysts from the top of his shoulders to his lower back. He also reported having constant rosacea with large veins on his nose and face. See July 2015 Form 9. During the November 2016 VA examination, the Veteran reported that the acne on his back flared up one to two times a month, for which he took medication with good results. As for the rosacea on his face, the Veteran reported that the condition was constant and affected the area around his nose and cheeks. He denied having any treatment for rosacea. The November 2016 VA examiner noted that the service-connected disability did not result in scarring or disfigurement of the head, face, or neck and described the Veteran’s acne as superficial. He further noted that the Veteran’s acne required constant or near-constant use of oral medication. During this examination, the examiner also noted the Veteran demonstrated eczematous dermatitis. In this regard, the November 2016 examiner noted that the Veteran’s eczema affected less than five percent of the Veteran’s entire body surface area and total body surface area. He did not provide an estimate for the Veteran’s acne rosacea or acne but noted there was erythema of the malar areas of the face secondary to rosacea and no lesions noted on the hands. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and find that the approximate affected body area noted by November 2016 VA examiner was due to the Veteran’s service-connected acne rosacea and acne disability. During an October 2019 VA examination, the examiner noted the Veteran’s symptoms included facial rosacea and eruptions of acne on his face and back. The examiner noted the Veteran’s medication included a topical gel that reportedly helped his acne. The examiner also noted that the Veteran’s acne was manifest by pustular lesions on his entire back that affected between five percent but less than 20 percent of the total body area but none of the exposed body area. As for rosacea, the examiner stated there was reddish flaring of the Veteran’s face and cheeks that affected less than five percent of the Veteran’s total body surface area and exposed area. The combined percentage for both the acne rosacea and acne disability was nine percent of the total body area and four percent for the exposed body area. After reviewing the foregoing evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for the Veteran’s service-connected acne rosacea and acne disability from July 29, 2015. The evidence reflects that clinicians have consistently described the acne rosacea on the Veteran’s face and acne on his back as superficial, recurrent lesions that are fairly constant, as they occur on a weekly basis. See e.g., VA examinations dated June 2011, December 2013, and November 2016. However, the Veteran has endorsed having flare-ups of his condition that are manifested by deep and painful acne on his face, as well as inflamed, pus-filled cysts on his back. See July 2015 VA Form 9; see also November 2016 VA examination. The Veteran is competent to report the severity of his symptoms and the Board has no reason to doubt the Veteran’s report of occasionally experiencing deep, inflamed, pus-filled cysts on his face and back. Therefore, the Board finds that the lay evidence of record is sufficient to establish the presence of deep acne as contemplated by DC 7828. The first evidence of deep, inflamed, pus-filled cysts on the Veteran’s face and back is reflected in a July 2015 statement. Prior to that date, the evidence reflects that the Veteran’s acne and acne rosacea were described as mild pustular lesions and superficial telangiectasias. See June 2011 VA examination; December 2011 treatment record; and December 2013 VA examination. There is no medical evidence dated prior to July 2015 that shows findings consistent with deep acne and, notably, the Veteran the Veteran did not report having flare-ups of his condition that were manifested by deep, inflamed, pus-filled cysts on his face or back until the July 2015 statement. The Board acknowledges that, in 2012, the Veteran reported that the severity of his acne was not evidence during the June 2011 VA examination but he did not provide a description of the severity of his acne to counter the description provided during the examination and other evidence of record. Therefore, the Board finds that a 10 percent rating is warranted under DC 7828 from July 29, 2015, but no earlier, based upon the lay evidence of deep acne on the Veteran’s face and back. However, a rating in excess of 10 percent is not warranted at any time during the appeal period because the lay and medical evidence of record does not reflect that the Veteran’s acne rosacea on his face and acne on his back affect 40 percent or more of face and neck to warrant the higher, 30 percent rating. Instead, the preponderance of the evidence reflects that the Veteran’s acne and acne rosacea disability has affected less than five percent of the exposed body area, to include the face, neck and hands, throughout the appeal period. See e.g., VA examinations dated December 2013, November 2016, and October 2019. Therefore, the Board finds a 10 percent rating, but no higher, is warranted for service-connected acne rosacea and acne disability from July 29, 2015, but no earlier. The Board has also considered whether a compensable rating is warranted under DCs 7800 to 7805, as directed by DC 7828. However, the Board finds that the Veteran’s predominant disability is acne, as the lay and medical evidence of record does not reflect that his disability has resulted in scarring, to include deep (associated with underlying soft tissue damage), superficial, unstable (with frequent loss of covering of skin), or painful scars, other disfigurement of the head, face, neck, or other areas, or any other disabling effects not considered by DC 7828 or DCs 7800-7804. Therefore, a rating under DCs 7800-7805, including the criteria in effect prior to and after October 2018, is not warranted in this case. The Board notes that the claims file contains information regarding the percentage of the entire body and exposed area affected by the Veteran’s service-connected disability and, in this regard, the criteria of DC 7806 (including prior to and after October 2018) evaluates dermatitis or eczema based upon the percent of the entire body or exposed area of the body affected by the disability or, in the alternative, based upon the type of treatment received for the disability. A condition listed in the Rating Schedule may not be rated to another disability by analogy. See Copeland, 27 Vet. App. at 337. In this context, the Board notes that, since acne is specifically contemplated by DC 7858, the Veteran’s service-connected disability cannot be considered under DC 7806. The Board acknowledges that the evidence of record variously and interchangeably describes the skin condition on the Veteran’s face as acne rosacea and rosacea. See e.g., June 2011 VA examination; July 2011 private treatment record; November 2013 private treatment record; and VA examinations dated December 2013, November 2016, and October 2019. While rosacea is not specifically listed in the Rating Schedule, the Board finds that the Diagnostic Code for acne contemplates the symptoms generally associated with rosacea. In this regard, the Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has noted that rosacea, also known as acne rosacea, is defined as “a chronic skin disease, usually involving the middle third of the face, characterized by persistent erythema and often by telangiectasia with acute episodes of edema, papules, and pustules; it affects both men and women, but is often more severe in men.” See Dorland’s Illustrated Medical Dictionary 1654 (32d ed. 2012). Erythema is the “redness of the skin produced by congestion of the capillaries.” Id. at 643. Telangiectasia is the “permanent dilation of preexisting small blood vessels... to form focal, discolored lesions.” Id. at 1878. See Miller v. Shinseki, No. 10-1821, 2011 U.S. App. Vet. Claims LEXIS 2122, at 2-3 n.2 (Vet. App. Oct. 6, 2011). Therefore, the Board finds that any redness of the skin, papules, pustules, and discolored lesions caused by rosacea in this case is adequately contemplated by the inflamed nodules and cysts noted in DC 7828, for acne. As such, a rating by analogy under DC 7806, for dermatitis/eczema, or any other Diagnostic Code related to disabilities of the skin, is not warranted or appropriate in this case. The Board acknowledges that the Veteran believes that his acne disability is more severe than the assigned disability rating reflects, and the Board has considered his competent statements regarding the nature and severity of his symptoms in evaluating this case. However, the lay and medical evidence of record does not show that the Veteran’s service-connected acne rosacea and acne disability more nearly approximates the criteria to warrant a rating higher than that assigned in this decision. Therefore, the Board finds that the preponderance of the evidence is against the grant of an initial, compensable rating for service-connected acne rosacea and acne disability. However, from July 29, 2015, a 10 percent rating, but no higher, is warranted for service-connected acne rosacea and acne disability under DC 7828. All reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.