Citation Nr: 21012246 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-24 648 DATE: March 3, 2021 ORDER Entitlement to service connection for osteoarthritis of the bilateral knees, status post arthroplasties (bilateral knee disability), as secondary to service-connected bilateral plantar fasciitis, is granted. Entitlement to an initial rating higher than 30 percent for migraines is denied. Entitlement to an initial compensable rating for tinea pedis is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s bilateral knee disability is proximately due to his service-connected bilateral plantar fasciitis. 2. During the appeal period, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months; his migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s tinea pedis does not more nearly approximate 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. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability, as secondary to service-connected bilateral plantar fasciitis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial disability rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for an initial compensable disability rating for tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1973 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in February 2017; a transcript is of record. In February 2018, the Board remanded these claims, in addition to claims for entitlement to service connection for a low back disability and a left hip disability, for additional development. The issues of entitlement to service connection for a low back disability and a left hip disability were granted in a March 2019 rating decision, and as such, are no longer on appeal. The Board notes that the Veteran claimed entitlement to a total disability rating based on individual unemployability (TDIU), which was denied in a May 2019 rating decision; however, the Veteran requested a higher-level review of that decision. See May 2020 VA Form 20-0996. As such, that issue is not before the Board at this time. Service Connection 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected disability. The Veteran seeks entitlement to service connection for a bilateral knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As service connection for a bilateral knee disability is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct basis or any other basis. Initially, the Board notes that the Veteran has a current diagnosis of osteoarthritis of the bilateral knees, status post arthroplasties. See October 2018 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied. See Allen, supra. As for element (2) under Allen, nexus, the Board notes the Veteran submitted several private medical opinions that relate his bilateral knee disability to his service-connected disabilities. For example, a February 2017 private medical opinion from Dr. K. explains that the Veteran has bilateral plantar fasciitis, which leads to an antalgic/limping gait, which in turn leads to low back pain, disc degeneration, hip and knee pain, secondary to a shift in weight bearing from the feet. The physician noted that the Veteran’s duties in the military involved long periods of standing and walking on concrete and he started shifting the weight bearing to his lumbar spine, hips and knees. An additional private physician, Dr. M., submitted an opinion in May 2020, opining that the Veteran injured his back and left hip during service, which caused him to develop problems with bilateral knee arthritis and pain, requiring meniscal repair and partial knee replacement. The Board notes that this opinion, however, does not contain any further rationale. The Veteran is currently service connected for a lumbar strain, degenerative changes of the left hip and bilateral plantar fasciitis. The Board acknowledges that a November 2018 VA examiner opined the Veteran’s bilateral knee disability was not caused by or aggravated by his service-connected plantar fasciitis, but instead was likely due to age and obesity. Here, the Board finds the positive February 2017 private opinion from Dr. K. is at least as persuasive as the negative November 2018 VA opinion. The private physician included a rationale with the opinion, explaining the relationship between the Veteran’s service-connected bilateral plantar fasciitis and his claimed bilateral knee disability. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). As such, resolving all reasonable doubt in the Veteran’s favor, the Board finds the evidence is at least in equipoise and element (2) under Allen, nexus, has been satisfied. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral knee disability is proximately due to his service-connected bilateral plantar fasciitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a bilateral knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings The Veteran seeks entitlement to increased ratings for his migraines and tinea pedis. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities. 2. Entitlement to an initial rating higher than 30 percent for migraines. Service connection for migraines was granted in an April 2014 rating decision, at which time a 30 percent rating was assigned, effective August 27, 2013. The Veteran contends that he is entitled to a higher rating because he experiences frequent migraines, at least three times a week, during which he must lay in bed with the shades drawn. See, e.g., February 2017 BVA Hearing Transcript. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran was afforded a VA examination in April 2014. It was noted that he experienced headaches at least once a week and untreated headaches would last over four hours. He indicated headaches were aggravated by light, sound, and nausea. It was noted that the Veteran liked to lay down in a dark, quiet room when having a headache. He was prescribed medication for treatment of his migraines. The Veteran’s migraines were described as pulsating or throbbing head pain, localized to one side of the head, that worsened with physical activity. Prostrating attacks were noted to occur once every month and were not productive of severe economic inadaptability; however, it was noted that he missed about two days of work per month due to migraines. As previously noted, during the February 2017 BVA Hearing, the Veteran testified that he experiences frequent migraines, at least three times a week, during which he must lay in bed with the shades drawn. See, e.g., February 2017 BVA Hearing Transcript. The Veteran was then afforded a VA examination in October 2018. It was noted that he experiences four to five migraines a month, lasting approximately one hour. The Veteran reported that his migraines were without recent change/progression since the late 1970s/early 1980s. It was reported that he experienced prostrating headaches approximately once every month. He reported sensitivity to light and sound, nausea, vomiting, and changes in vision. Aggravating factors were bright, loud noises, head movement and physical activity, with relieving factors described as being in a quiet, dimmed place without moving his head. It was noted that the Veteran was not working and had last worked in 2016; however, he indicated the migraines limited his sleep and thinking. The examiner indicated that the Veteran’s migraines were not productive of severe economic inadaptability. The Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for the currently assigned 30 percent rating under DC 8100. Of note, during the April 2014 VA examination, the Veteran reported having migraines at least once a week and during the October 2018 VA examination, he reported experiencing migraines at least four to five times a month; however, during both examinations, it was noted that he only experienced prostrating migraines approximately once a month. The Board has considered the April 2014 and October 2018 VA examiners’ assessments that the Veteran’s migraines were not very frequently prostrating and prolonged attacks that were productive of severe economic inadaptability highly probative due to the examiners’ expertise and clinical review of the record. The medical and lay evidence are not otherwise persuasive to show that the Veteran’s migraines were very frequently completely prostrating and prolonged attacks productive of or capable of producing severe economic inadaptability. Records indicate that, at most, the Veteran experienced prostrating attacks of no more than once a month. This evidence is suggestive of a less than “very frequent” occurrence for completely prostrating and prolonged attacks that are productive of or capable of producing severe economic inadaptability necessary for a 50 percent rating. The Veteran is competent to report his readily observable symptoms, such as pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has also considered the reports that the Veteran experiences at least three to four headaches a week and must lay down in a dark room. However, the April 2014 and October 2018 VA examiners specifically stated that the prostrating attacks occurred once a month, which the Board finds is not very frequent. Furthermore, during the April 2014 VA examination, the Veteran reported missing approximately two days a month due to migraines when he was employed. The Board finds that missing two days a month is not reflective of producing, or capable of producing, severe economic inadaptability. Here, although the Veteran reports experiencing frequent headaches, his prostrating attacks only occur approximately once a month, throughout the period on appeal. The Veteran himself indicated during the October 2018 VA examination that his migraines were without recent change/progression since the early 1980s. Thus, the Board concludes that the Veteran has not had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period. A higher 50 percent rating is not warranted under DC 8100. The preponderance of the evidence is against assignment of any higher rating at any point pertinent to this appeal. 3. Entitlement to an initial compensable rating for tinea pedis. Service connection for tinea pedis was granted in an October 2010 rating decision, at which time a noncompensable rating was assigned, effective February 2010. A notice of disagreement with the rating assigned was received in November 2010. The Veteran contends that he is entitled to a higher rating because he experiences itching on the bottoms of both feet as well as between his toes and must use a cream medication approximately three times a week. See February 2017 BVA Hearing Transcript. The Veteran’s tinea pedis is rated under Diagnostic Code 7813 for tinea pedis of the feet. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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 Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7813 instructed to rate as disfigurement of the face or neck (DC 7800) or scars (DC’s 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 tinea pedis of the feet, which is closely analogous to dermatitis. 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 Court 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: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: 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, 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: characteristic lesions involving more than 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 assigned for at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. The Veteran was afforded a VA examination in September 2010. The Veteran reported his tinea pedis started around 1976 and never went away. He reported using an over the counter spray and a prescription cream. The examiner indicated the Veteran was treated constantly with a topical cream, which was neither a corticosteroid nor an immunosuppressive. Physical examination revealed skin on the feet was dry with some cracking; there was no erythema and interdigital skin was intact. The examiner indicated that two percent of the total body was affected, and zero percent of exposed areas were affected. There was no scarring or disfigurement and no functional impairment caused by the condition. As noted, during the February 2017 Board hearing, the Veteran testified that he experiences itching on the bottoms of both feet as well as between his toes and must use a cream medication approximately three times a week. See February 2017 BVA Hearing Transcript. The Veteran was afforded a VA examination in October 2018. He reported that sometimes the condition is better and sometimes it is worse. The examiner noted that the outpatient medication list did not show an active antifungal medication and his prescription was last filled in 2016 and was discontinued. It was noted that the Veteran had not been treated with medication in the past twelve months for his skin condition and had not had treatment or procedures in the past 12 months. Physical examination indicated the Veteran’s skin condition affected less than five percent of total body area and zero percent of exposed body area. There was no scarring, no functional impact, and he had no debilitating or non-debilitating episodes in the prior twelve months. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018 regulations because the Veteran’s tinea pedis does not more nearly approximate 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, nor had he required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the post-August 13, 2018 regulations because the Veteran’s tinea pedis does not more nearly approximate (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, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. As noted, the September 2010 VA examination reported two percent of total body affected, zero percent of exposed body affected, and treatment consisting only of a topical cream that was not a corticosteroid or immunosuppressant. The October 2018 VA examiner reported the Veteran’s tinea pedis affected less than five percent of total body area and zero percent of exposed body area, with no prescribed treatment in the past twelve months. The Board acknowledges that the Veteran believes that his tinea pedis is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include itching. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical treatment records do not show that the Veteran’s disability more nearly approximates the criteria in the next higher rating to warrant an increased rating. 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for tinea pedis. 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. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.