Citation Nr: 21012094 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-00 214A DATE: March 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to a disability rating in excess of 30 percent for tinea versicolor is denied. FINDINGS OF FACT 1. The Veteran’s right knee osteoarthritis manifested in, at worst, flexion to 65 degrees and extension to 10 degrees. 2. The Veteran’s tinea versicolor manifested in an itchy, scaly rash covering 5 to 20 percent of the total body area but no exposed areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261. 2. The criteria for a rating in excess of 30 percent for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to April 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) regional office. In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board remanded these matters for further development in March 2020. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. 10 percent rating for right knee osteoarthritis. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 27, 2021, the Board will consider the old version of the diagnostic codes only (old code); however, for the period beginning February 27, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, an unrepaired or failed repair of a complete ligament tear causing persistent instability, with the prescription by a medical provider of both an assistive device and bracing for ambulation, warrants a 30 percent rating, which is the highest allowable rating for recurrent subluxation and instability. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability with the prescription by a medical provider of a brace and/or assistive device for ambulation warrants a 20 percent rating. An unrepaired or failed repair of a complete ligament tear causing persistent instability with the prescription by a medical provider of an assistive device or bracing for ambulation also warrants a 20 percent rating. Finally, a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device or bracing ambulation, warrants a 10 percent rating. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id., Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). The Board notes that the Veteran does not asserts, nor does the evidence reflect, that he experiences subluxation or instability as contemplated by either the old or new rating criteria; as such, these diagnostic codes are not for application. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. This appeal stems from a claim dated in April 2016. During the period on appeal, the knee is rated as 10 percent disabling under Diagnostic Code 5003-5261 for limitation of extension, with the exception of the period dated from April 30, 2018, to July 31, 2018, when the Veteran is in receipt of a temporary total rating. The Board concludes that the Veteran’s disability picture, to include the Veteran’s statements, does not more nearly approximate the degree required for a higher or separate rating. Range of motion testing was performed during VA examinations in August 2017 and March 2020, and was at worst 65 degrees of flexion and 10 degrees of extension. A June 2016 VA examiner was unable to complete range of motion because the Veteran refused to flex his knee due to the concern of worsening pain. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The examination reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his knee, he has not described a range of motion less than that found on examination. In this regard, during the June 2016 examination he did report flare-ups but described the flare-ups as consisting of increased pain along with swelling. He did not report flare-ups at the August 2017 and March 2020 examinations. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Treatment records do not show greater limitation of motion than the examination findings. While range of motion was not tested during the June 2016 examination, the evidence does not demonstrate that a higher disability rating is warranted. In that regard, none of the other range of motion testing of record reflects a greater limitation of motion. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary; the March 2020 examiner noted that flexion would be limited to 60 degrees with repeated use over time, but this does not merit a higher rating. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. While the June 2016 and August 2017 VA examiners in this case did not estimate range of motion during flare-ups or after repetitive use as applicable, the June 2016 examiner opined that pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over a period of time or with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). All of the available evidence does not otherwise suggest, nor does the Veteran allege, that the Veteran’s functional ability are significantly limited with repetitive use over time. The Board notes that the June 2016 VA examiner indicated that the Veteran had been diagnosed with a meniscal tear. However, VA examiners have not suggested that the Veteran has experienced frequent episodes of joint locking, pain, or effusion, related to the tear nor have such symptoms otherwise been noted in the treatment records or asserted by the Veteran. Accordingly, the Board finds that the assignment of a separate rating pursuant to Diagnostic Code 5258 or 5259 is not warranted. 38 C.F.R. § 4.71a. Finally, the Board notes that the Veteran underwent a partial knee replacement in 2018. While 38 C.F.R. § 4.71a, Diagnostic Code 5055, addresses rating knee disabilities following prosthetic replacement, the current version of the regulation, which has been in place during the entire period on appeal, clarifies that this diagnostic code is only applicable for a total joint replacement. As such, it is not for application in this case. 2. 30 percent rating for tinea versicolor. The Veteran’s tinea versicolor is rated as 30 percent disabling under Diagnostic Code 7813-7806. Diagnostic Code 7813 refers to dermatophytosis, specifically including tinea versicolor. Diagnostic Code 7806 refers to dermatitis or eczema. The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the old version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Prior to August 13, 2018, Diagnostic Code 7813, instructed to rate as disfigurement of the, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Here, the evidence of record demonstrates that the predominant disability is dermatitis, as the evidence reflects that the condition primarily manifested in a scaly rash and there is no evidence of scarring or disfigurement of the head, face, or neck. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. For claims filed prior to August 13, 2018, the United States Court of Appeals for Veterans Claims held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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 assigned at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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 assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. As noted above, in this case the predominant disability is a rash. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under the pre-August 13, 2018, regulations because the Veteran’s tinea versicolor does not affect more than 40 percent of the entire body or of exposed areas or require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during a 12-month period. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under the August 13, 2018, regulations because the Veteran’s tinea versicolor does not more result in characteristic lesions involving more than 40 percent of the entire body or of exposed areas, or require constant or near-constant systemic therapy over a 12-month period. In that regard, the Veteran underwent VA examination in June 2016 and March 2020. In June 2016, the Veteran reported a rash on the back, chest, shoulders, and lower abdomen associated with itching. The examiner noted no scarring, no systemic manifestations, and no debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiform, or toxic epidermal necrolysis. The examiner indicated that the condition covered 5 to 20 percent of the total body area, but no exposed area, and was characterized by scaly, round or oval, hyperpigmented, macular patches. In March 2020, the VA examiner noted that the Veteran was evaluated by a dermatologist at least monthly and had been treated with a course of oral antifungal medication as well as a course of steroids with no improvement. The Veteran also used a selenium shampoo for six weeks or more, but not constantly, as well as oral Fluconazole for seven weeks. The examiner opined that the condition affected 5 to 20 percent of the total body area with no exposed areas affected, and was characterized by hyperpigmented, brown, ovoid or round macular plaques on the anterior chest, lower abdomen, and upper back. Thus, the evidence does not demonstrate that a higher rating is warranted under either the old or new rating criteria. At no time was the condition noted to cover 40 percent or more of the body or of exposed areas of the body, nor does the evidence suggest that the Veteran underwent constant or near-constant systemic therapy. While he was treated on a course of oral antifungal medication and a course of steroids, such therapy was temporary rather than constant or near-constant. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include that he feels embarrassment as a result of the rash on his chest and back and fears swimming in public. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board also notes that the Veteran seems to assert that this condition results in psychiatric symptoms. If this is the case, the Board encourages the Veteran to file a claim for secondary service connection so that VA may undertake appropriate development. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. (Continued on the next page.) In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 30 percent for tinea versicolor. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.