Citation Nr: 21022038 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-36 758 DATE: April 14, 2021 ORDER A higher initial disability rating of 10 percent, but no higher, for right leg restless leg syndrome and compartmental syndrome (right leg disability) is granted. A higher initial disability rating of 10 percent, but no higher, for left leg restless syndrome and compartmental syndrome (left leg disability) is granted. A higher initial disability rating of 10 percent, but no higher, for uterine fibroids is granted. A higher initial disability rating of 10 percent for dyshidrotic eczema is granted. A higher initial disability rating in excess of 10 percent for bilateral tinea pedis has been withdrawn. REMANDED A higher initial (compensable) disability rating for the right thumb strain is remanded. For the initial rating period from January 1, 2018 forward, a higher initial disability rating in excess of 10 percent for dyshidrotic eczema is remanded. FINDINGS OF FACT 1. For the entire initial rating period on appeal from October 1, 2013, the right leg disability has been manifested by mild incomplete paralysis of the anterior tibial nerve, without moderate incomplete paralysis of the anterior tibial nerve. 2. For the entire initial rating period on appeal from October 1, 2013, the left leg disability has been manifested by mild incomplete paralysis of the anterior tibial nerve, without moderate incomplete paralysis of the anterior tibial nerve. 3. For the entire initial rating period on appeal from October 1, 2013, the uterine fibroids have manifested in symptoms that require continuous treatment. 4. For the entire initial rating period on appeal from October 1, 2013, the dyshidrotic eczema (eczema) has been manifested by a rash that affects at least 5 percent, but less than 20 percent, of the entire body affected. 5. Per February 2021 Board testimony, prior to promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of a higher initial disability rating for bilateral tinea pedis. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor for the Veteran, for the entire initial rating period on appeal from October 1, 2013, the criteria for a higher initial disability rating of 10 percent, but no higher, for the right leg disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 8620. 2. Resolving reasonable doubt in favor for the Veteran, for the entire initial rating period on appeal from October 1, 2013, the criteria for a higher initial disability rating of 10 percent, but no higher, for the left leg disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 8620. 3. Resolving reasonable doubt in favor for the Veteran, for the entire initial rating period on appeal from October 1, 2013, the criteria for a higher initial disability rating of 10 percent, but no higher, for uterine fibroids have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.116, Diagnostic Code 7613. 4. For the initial rating period from October 1, 2013 to January 1, 2018, the eczema has affected less than 20 percent of the entire body and less than 20 percent of the exposed areas of the body, and has required no more than topical therapy during a 12-month period. 5. Resolving reasonable doubt in favor for the Veteran, for the entire initial rating period on appeal from October 1, 2013, the criteria for a higher initial disability rating of 10 percent for the dyshidrotic eczema have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.118, Diagnostic Code 7806. 6. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for a higher initial disability rating for bilateral tinea pedis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from January 1993 to September 2013. Disability Rating Criteria 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. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § § 4.3. When rating disabilities of the musculoskeletal system, 38 C.F.R. § § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § § 4.59. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where a claimant has a full range of motion with pain, or a noncompensable limitation of motion that is accompanied by pain, a 10 percent rating may be appropriate. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); see also Mitchell, 25 Vet. App. at 39. Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton, 25 Vet. App. at 5. 1. Rating the right leg disability 2. Rating left leg disability For the entire initial rating period on appeal from October 1, 2013, the Veteran is in receipt of initial noncompensable (0 percent) disability ratings for the right and left leg disabilities under Diagnostic Code 8699-8620. 38 C.F.R. § 4.124a. Diagnostic Code 8620 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. § § 4.2, 4.6. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After a review of all the lay and medical evidence of record, the Board finds that the evidence demonstrates the right and left leg disabilities have been manifested by mild incomplete paralysis of the anterior tibial nerves so as to warrant a higher initial 10 percent rating for the entire initial rating period from October 1, 2013. Since the onset of the right and left leg disabilities during service and throughout the initial rating period on appeal, the Veteran has consistently reported symptoms of pain and numbness in the legs while running or speed walking. See e.g. September 2013 service treatment record; September 2013 VA examination report; February 2015 VA examination report; January 2017 VA examination report; June 2017 private medical letter. A January 2017 VA examination report reflects the VA examiner’s findings that the Veteran’s symptoms of pain and numbness in the right and left legs are attributable to a peripheral nerve condition manifested by mild paresthesias and/or dysesthesias in the right and left lower extremities. The January 2017 VA examiner assessed mild incomplete paralysis of the anterior tibial nerve in both the right and left lower extremities. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from October 1, 2013, the Board finds that the criteria for higher initial disability ratings of 10 percent under Diagnostic Code 8620 have been met for the right and left leg disabilities. 38 C.F.R. § 4.3, 4.7, 4.124a. The Board further finds the weight of the evidence is against finding that the right and left leg disabilities more nearly approximated moderate incomplete paralysis of the anterior tibial nerves in either the right or left lower extremities. A September 2013 service treatment record reflects the Veteran reported that symptoms of the right and left leg disabilities did not limit her daily functions. During a February 2015 VA examination, the Veteran reported that her right and left legs would feel like bricks when running and that the right and left leg disabilities impact her ability to run and exercise. During a January 2017 VA examination, the Veteran reported that symptoms of the right and left leg disabilities had greatly improved since separating from service as she is no longer required to run; instead, the Veteran endorsed current symptoms of numbness in the right and left ankles and feet after power walking. A June 2017 private medical letter from Dr. M.S. states that the Veteran experiences increased numbness and pain in the right and left legs with exercise, which ultimately becomes total numbness with a moderately aggressive workout. Dr. M.S. stated that the right and left legs are rendered useless when the numbness sets in and the Veteran must rest and wait for the numbness to improve until she is able to move again. However, the medical evidence of record does not illustrate symptoms so severe as to render the right and left legs useless. For example, the January 2017 VA examination report discussed above shows that the VA examiner found normal strength, normal deep tendon reflexes, and normal sensation in the right and left legs. Furthermore, the January 2017 VA examiner indicated negative findings for functional impairment of the right and left legs such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Because Dr. M.S.’s statements in the June 2017 private medical letter are not based on physical examination findings and are not supported by the other medical evidence of record, the Board finds that Dr. M.S.’s statement that the right and left legs are rendered useless when the numbness sets in is outweighed by the January 2017 VA examination report showing the VA examiner’s assessment of mild incomplete paralysis of the anterior tibial nerve in the right and left lower extremities. Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran’s right and left leg disabilities have not more nearly approximated the criteria for a 20 percent rating under Diagnostic Code 8620 for symptoms of moderate incomplete paralysis of the anterior tibial nerve for any part of the initial rating period from October 1, 2013; therefore, higher initial disability ratings in excess of 10 percent is not warranted under Diagnostic Code 8620 for the right and left leg disabilities. 38 C.F.R. §§ 4.3, 4.7. 3. Rating uterine fibroids The Veteran is in receipt of a noncompensable (0 percent rating) for the service-connected uterine fibroids for the entire initial rating period on appeal from October 1, 2013 under Diagnostic Code 7699-7613. 38 C.F.R. § 4.116. The Veteran generally contends that a higher (compensable) disability rating is warranted. See April 2014 Notice of Disagreement. Diagnostic Code 7613 pertains to disease, injury, or adhesions of the uterus. Pursuant to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (diagnostic codes 7610 through 7615), symptoms not controlled by continuous treatment warrant a 30 percent rating. Symptoms that require continuous treatment warrant a 10 percent rating. Symptoms that do not require continuous treatment are assigned a noncompensable rating. 38 C.F.R. § 4.116, Diagnostic Code 7613. After a review of all the lay and medical evidence of record, the Board finds that, for the entire initial rating period on appeal from October 1, 2013, the service-connected uterine fibroids have manifested in symptoms that require continuous treatment. Service treatment records and post-service private treatment records consistently demonstrate that the service-connected uterine fibroids have manifested in symptoms of menorrhagia, and that the Veteran had an intrauterine device (IUD) placed specifically to control symptoms of menorrhagia. See e.g. January 2006 service treatment record; November 2010 service treatment record; June 2017 private medical letter. Additionally, the medical evidence demonstrates that the Veteran had the IUD replaced in 2010 and 2016 for the continued control of menorrhagia caused by the service-connected IUD. Unfavorable evidence includes September 2013 and February 2015 VA examination reports of record. Although the September 2013 and February 2015 VA examiners acknowledged the use of an IUD to control menorrhagia caused by the service-connected uterine fibroids, the VA examiners nonetheless noted negative findings for symptoms of uterine fibroids that require continuous treatment. Neither the September 2013 nor February 2015 VA examiners explained why placement of the IUD was not considered as continuous treatment of menorrhagia caused by the service-connected uterine fibroids. As such, the Board finds that the September 2013 and February 2015 VA examination reports are outweighed by the service treatment records and post-service private treatment records discussed above. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from October 1, 2013, the Board finds that the criteria for a higher initial disability rating of 10 percent under Diagnostic Code 7613 have been met for uterine fibroids. 38 C.F.R. § 4.3, 4.7, 4.124a. The Board further finds that a higher initial disability rating in excess of 10 percent under Diagnostic Code 7613 is not warranted for any period as the service-connected uterine fibroids have not manifested in symptoms that are not controlled by continuous treatment. The medical evidence of record has consistently showed that placement of the IUDs have controlled symptoms of menorrhagia well. See e.g. November 2010 service treatment record; June 2012 service treatment record; June 2013 service treatment record; June 2017 private medical letter. Additionally, the Veteran testified during the February 2021 Board hearing that she is not experiencing any symptoms of the uterine fibroids because of the use of an IUD. Accordingly, the Board finds that the weight of the evidence demonstrates the uterine fibroids have not manifested in symptoms not controlled by continuous treatment (criteria for a 20 percent rating), and that the criteria for a higher initial rating in excess of 10 percent under Diagnostic Code 7613 have not been met. 38 C.F.R. § 4.116. 38 C.F.R. §§ 4.3, 4.7. 4. Rating dyshidrotic eczema For the entire initial rating period on appeal from October 1, 2013, the Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected dyshidrotic eczema (eczema) under Diagnostic Code 7806. 38 C.F.R. § 4.118. Under Diagnostic Code 7806, the rating code for dermatitis and eczema, a 0 percent rating is provided when 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-month period. A 10 percent rating is provided when at least 5 percent, but less than 20 percent, of the entire body is covered, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or for 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 provided when 20 to 40 percent of the entire body is covered, or 20 to 40 percent of exposed areas are affected, or for required systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is provided when more than 40 percent of the entire body is covered, or more than 40 percent of exposed areas are affected, or for required constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. The disability may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801 through 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Under the recently revised schedule of skin ratings, effective August 13, 2018, Diagnostic Code 7806, dermatitis or eczema, is rated under the General Rating Formula for the Skin (General Rating Formula), Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. 38 C.F.R. § 4.118. Under the General Rating Formula, a 10 percent rating is assigned where there is characteristic lesions involving 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 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 six weeks over the past 12-month period. A 30 percent rating requires characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating requires characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. Effective August 13, 2018, 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. 38 C.F.R. § 4.118(a). After a review of all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether manifestations of eczema more closely approximates the criteria for a higher 10 percent rating under Diagnostic Code 7806. Although a February 2015 VA examination report reflects eczema affects less than five percent of the entire body and exposed areas, a June 2017 private medical letter reflects the eczema affects roughly six percent of the entire body area, which is a disability picture commensurate with a 10 percent schedular rating under Diagnostic Code 7806. Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that a higher initial disability rating of 10 percent under Diagnostic Code 7806 for the service connected dyshidrotic eczema is warranted for the entire initial rating period from October 1, 2013. 38 C.F.R. §§ 4.3, 4.7, 4.118. The Board further finds that, for the initial rating period from October 1, 2013 to January 1, 2018 a higher initial rating in excess of 10 percent for the service-connected dyshidrotic eczema is not warranted under Diagnostic Code 7806. The issue of whether a higher initial rating in excess of 10 percent for the service-connected dyshidrotic eczema for the initial rating period from January 1, 2018 forward is being remanded in the Board’s instant decision below. For the initial rating period from October 1, 2013 to January 1, 2018, the eczema has affected less than 20 percent of the entire body and less than 20 percent of the exposed areas of the body, and has required no more than topical therapy during a 12-month period. The February 2015 VA examination report reflects the use of topical triamcinolone acetonide cream to treat the eczema in the past 12 months. Additionally, the medical evidence of record reflects that the eczema has, at most, affected six percent of the total body area. See June 2017 private medical letter. For these reasons, a higher initial disability rating in excess of 10 percent is not warranted for the service-connected dyshidrotic eczema for the initial rating period on appeal from October 1, 2013 to January 1, 2018. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806. 5. A higher initial rating for bilateral tinea pedis is dismissed Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 19.55. Per the February 2021 Board hearing testimony, the Veteran asked to withdraw the issue of a higher initial disability rating for bilateral tinea pedis. As the Veteran has withdrawn the appeal regarding a higher initial disability rating for bilateral tinea pedis, there remains no allegation of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review this issue, and the issue of a higher initial disability rating for bilateral tinea pedis will be dismissed. REASONS FOR REMAND 6. Rating the right thumb strain The Veteran underwent VA examinations for the right thumb in September 2013 and February 2015. During the VA examinations, the Veteran reported experiencing episodes of flare-ups with increased pain and functional limitation. However, neither the September 2013 nor February 2015 VA examiners adequately explained if additional range of motion in the right thumb was lost during episodes of flare ups, and if so, quantifying any additional loss of motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. The Court explained that an examiner must do all that reasonably can be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in Sharp that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. The mere fact that the Veteran was not experiencing a flare-up at the time of the VA examination is insufficient rationale as to whether additional limitation of function due to flare-ups of the right thumb could be determined. As such, remand for a new VA examination is needed. 7. Rating in excess of 10 percent for dyshidrotic eczema from January 1, 2018 is remanded. The Board’s instant decision grants a higher initial 10 percent disability rating under Diagnostic Code 7806 for the service-connected dyshidrotic eczema for the entire initial rating period from October 1, 2013. During the February 2021 Board hearing, the Veteran testified to worsening eczema symptoms starting in 2018. Specifically, the Veteran testified that the eczema around the face is more severe and that patch testing was required to assess what was causing the worsening skin symptoms. The Veteran testified that testing revealed an allergy to a common chemical that exacerbates the eczema. Because the Veteran testified to specific worsening eczema symptoms, the Board finds that further examination is required so the decision is based on a record that contains a current examination. The matters are REMANDED for the following action: 1. Schedule a VA examination to assist in determining the current severity and functional impairment of the right thumb strain. The VA examiner should report the extent of right thumb symptoms in accordance with VA rating criteria. Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources, including the Veteran’s lay statements. (Continued on the next page)   2. Schedule the appropriate VA examination in order to assist in determining the current level of severity and functional impairment of the service-connected dyshidrotic eczema. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.