Citation Nr: 21023211 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-26 751 DATE: April 20, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right thumb sprain is denied. Entitlement to an initial compensable disability rating for tinea cruris (claimed as jock itch) is denied. FINDINGS OF FACT 1. The Veteran’s right thumb sprain is manifested by functional loss, pain, and weakness in grip, but not by limitation of motion with a gap of more than two inches between the thumb pad and the fingers. 2. The Veteran’s tinea cruris is manifested by episodes of dry, painful, itchy skin, that is treated with topical medication, but it has not required intermittent systemic therapy or affected at least five percent of his body. CONCLUSIONS OF LAW 1. The criteria for a greater than 10 percent rating for right thumb sprain are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5228. 2. The criteria for a compensable disability rating for tinea cruris 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 served on active duty from November 1983 to June 1991. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In June 2012, the AOJ issued a rating decision granting service connection for a right thumb sprain and tinea cruris, effective June 2011. The right thumb sprain was assigned a 10 percent rating under Diagnostic Code (DC) 5228; tinea cruris was assigned a noncompensable (0 percent) rating under DC 7813. The Veteran timely disagreed in a June 2013 Notice of Disagreement (NOD) and perfected his appeal in a July 2015 VA Form 9. In February 2012, the Board remanded the Veteran’s claim for another VA disability examination of the right thumb sprain. In June 2020, a new VA disability examination was conducted. Then in August 2020, the AOJ re-adjudicated the Veteran’s claims. His claim for an initial compensable rating for tinea cruris was denied. Also, his claim for a disability rating greater than 10 percent for right thumb sprain was denied. 1. Entitlement to an initial disability rating in excess of 10 percent for right thumb sprain. The Veteran contends a greater than 10 percent disability rating is warranted for his service-connected right thumb sprain. See June 2013 NOD. The question for the Board is whether the Veteran has established entitlement to a greater than 10 percent disability rating for his right thumb disability at any time during the appeal period. For the reasons discussed below, the Board concludes a higher disability rating is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). If there is a question as to which evaluation to apply to the 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 assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). 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. Where a claimant has a full range of motion with pain, or a noncompensable (0 percent) limitation of motion that is accompanied by pain, a 10 percent rating may be appropriate. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). But it does not apply to DCs with a maximum disability rating of 0 percent. Sowers v. McDonald, 27 Vet. App. 472, 480-82 (2016). When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The appropriate limitation of motion codes for the thumbs are DCs 5228 and 5224. Under DC 5228, a 10 percent disability rating is warranted when the gap between the pad of the thumb and finger is one to two inches (2.5 to 5.1 cm). A 20 percent disability rating is warranted when the gap is more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is the highest disability rating under that Code. Under DC 5224, a 10 percent rating is warranted for favorable ankylosis of the minor or major thumb. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R.§ 3.102. In May 2012, the Veteran underwent his first VA disability examination that evaluated his (now service-connected) right thumb sprain. He reported that, during service, he injured his thumb while playing basketball. He also reported he started observing pain at that thumb after the injury. Now, he observes stiffness, pain at the interphalangeal joint (IP, located at the tip of the finger just before the fingernail starts), and mild swelling. He reported those symptoms increase when working with his hands, to include operating machines at work and prolonged gripping. See May 2012 VA DBQ Hand and Finger Conditions at 2. He did not report flare-ups at that time. Id. The examiner diagnosed chronic right thumb sprain, with the date of diagnosis as 1983-84. The examiner added that the Veteran’s diagnosed disability impacts his ability to work. Id. at 1, 14. Range of motion testing was performed on the right thumb. The examiner noted a gap between the thumb pad and the fingers that measured less than one inch. The examiner also noted pain begins at less than one inch. And there is pain on palpation. Id. at 3, 9. As to the other fingers, the examiner noted there is not a gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with fingertips. Nor is there limited extension or evidence of painful motion of the index finger or long finger. Id. at 4. Repetitive-use testing for the thumb did not reveal any additional range of motion limitations. Muscle strength testing was performed on the hand: The examiner noted the results showed normal muscle strength. Id. at 6, 9. The examiner noted there is no ankylosis of the thumb joint. Id. at 10. In the Veteran’s July 2015 VA Form 9, he reported his thumb is not fully functional. He asserts it hurts and aches on occasion and gets to the point where he can no longer use it. See VA Form 9 at 1. Then in February 2019, the Veteran’s claim was remanded in order for a VA disability examination that evaluates whether the Veteran has pain at the left hand on active and passive range of motion. See Board Remand at 6. In October 2019, the Veteran underwent another VA disability examination. He reported he currently observes pain at the first metacarpophalangeal joint (MCP, large knuckle located where the finger meets the hand) after repetitive and forceful motions involving the thumb, such as yard work or pushing a mower. See October 2019 VA DBQ at 3. He did not report flare-ups at that time. Id. The examiner diagnosed chronic right thumb sprain. The examiner added that the Veteran’s diagnosed right thumb sprain impacts his ability to work: The examiner noted the Veteran should avoid repetitive forceful grasping with the right fingers or forceful flexion of the thumb. Id. at 3, 18. Range of motion testing was performed on the Veteran’s right thumb. For maximum flexion, it was 60 degrees at the MCP to 40 degrees at the IP. For maximum extension, it was zero degrees at the MCP and IP. The examiner also noted there is no gap between the pad of the thumb and fingers. Pain was noted at flexion as well as active and passive range of motion. Id. at 5, 18. Repetitive-use testing for the thumb did not reveal any additional range of motion limitations. Nor did consideration of repeated use over time. Muscle strength testing was performed on the hand: The examiner noted the results showed normal muscle strength. Id. at 7, 9, 14. As to the other fingers of the right hand, initial range of motion testing showed they were within normal limits. Repetitive-use testing for those fingers did not reveal any additional range of motion limitations. Nor did consideration of repeated use over time. Id. at 9, 10. Range of motion testing for the fingers of the left hand were all within normal limits. Repetitive-use testing for those fingers did not reveal any additional range of motion limitations. Also, muscle strength testing of the left hand showed normal strength. Id. at 5, 14. The examiner noted there is no ankylosis at any finger of the right or left hand. Id. at 16. A. Whether a greater than 10 percent rating for a right thumb disability was warranted at any time across the appeal period. Turning to the Veteran’s claim for disability compensation, the first question is whether there is sufficient evidence to warrant a disability rating greater than 10 percent for his service-connected right thumb sprain (right thumb disability). The Board recognizes the Veteran’s lay statements describing pain and limited use of his thumb. The Veteran has personal knowledge of symptoms like pain, stiffness, and greater difficulty using it. So, he is competent to report it. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, he has reported to the VA examiners who conducted his May 2012 and October 2019 VA disability examination that it is usually brought on after prolonged or forceful use of it. Those statements indicate he does not observe a constant inability to use the right thumb. Considering reports to medical providers are generally found reliable, the Board finds his statements credible. See May 2012 VA DBQ at 2; October 2019 VA DBQ at 3. Although he has also reported his thumb gets to a point that he can no longer use it, the Board finds his report is consistent with the ones provided to the VA examiners. See July 2015 VA Form 9 at 1. First, his report shows he does not constantly observe the inability to use his right thumb, which is consistent with his reports to the VA examiners. Second, his general description of “gets to the point he can no longer use it” reasonably fits with what he told the VA examiner; that is, pain interferes with his ability to use the thumb. As a result, the Board finds the examiners captured the extent to which his right thumb disability interferes with his ability to use it. Even though the Board finds the Veteran’s lay observations credible, he has not reported symptomatology that closely approximates the criteria for a disability rating greater than 10 percent. Although his symptoms, to include pain, interfere with his ability to use his right thumb, his particular disability is rated by functional limitation. Mitchell, 25 Vet. App. at 36-39. That is, the degree of limitation of movement. 38 C.F.R. § 4.71a. The findings in the October 2019 disability examination evaluated the degree of limited movement and those findings do not support a greater than 10 percent disability rating. In addition to a review of the file, the examiner acknowledged and considered the Veteran’s reports of pain and limited use of his right thumb. See VA DBQ at 3. So, the Board finds the examiner was informed of the relevant details of the Veteran’s past medical history. Nievez-Rodriguez, 22 Vet. App. at 301. Then, the examiner quantified those effects in terms of additional range of motion limitations. Id. at 6, 11. Sharp, 29 Vet. App. at 34-35. The examiner also noted the functional loss due to pain. And he quantified those effects in terms of range of motion limitations. Mitchell, 25 Vet. App. at 37-38. Since the examiner considered the Veteran’s lay statements and addressed any functional loss due to pain—the Board finds the October 2019 VA DBQ provides a clear picture of the extent to which pain is disabling—and assigned it significant probative weight. Id. at 44. Based on the examiner’s description of range of motion limitations due to pain, the Veteran is entitled to a disability rating of 10 percent, which is the disability rating currently assigned. During that examination, the examiner found the Veteran did not have a gap between the thumb pad and the fingers that was more than two inches, which is required for a 20 percent disability rating. See October 2019 VA DBQ at 5, 10. The Board notes the findings in the October 2019 VA DBQ are supported by the ones found in the May 2012 VA DBQ. During the May 2012 examination, the examiner noted a gap between the thumb pad and the fingers that measured less than one inch. See VA DBQ at 3. Considering that the examinations throughout the appeal period do not show a greater than 10 percent disability rating is warranted, consideration of staged ratings is also not warranted. Hart, 21 Vet. App. at 509-10. In this case, the evidence is not approximately balanced in favor of an increased disability rating. The lay evidence of record did not describe a disability picture that approximates limitations that warrant a greater than 10 percent disability rating. And the weight assigned to the Veteran’s statements were outweighed by the more the probative October 2019 VA DBQ. So, reasonable doubt could not be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that a disability rating greater than 10 percent for his service-connected right thumb disability is not warranted. B. Entitlement to a greater than 10 percent disability rating under other applicable diagnostic codes. Since the Board must consider all other potentially applicable diagnostic codes, the next question is whether an analogous rating is warranted. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board finds that the evidence does not support concluding there are other applicable DCs. The Veteran has already been assigned a 10 percent disability rating in recognition of painful motion. So, a compensable rating based on functional loss due to pain has already been granted. 38 C.F.R. § 4.59. The VA disability examinations did not provide a diagnosis of arthritis or find ankylosis. See May 2012 VA DBQ at 2, 10; October 2019 VA DBQ at 2, 16, 18. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 92 (33rd ed. 2020). So, consideration of a DC based on arthritis or ankylosis of the thumb is not warranted. In sum, the evidence of record does not show that the severity of the Veteran’s service-connected right thumb disability rated under DC 5228 warrants a rating greater than 10 percent rating at any time during the period on appeal. Hart, 21 Vet. App. at 505. Nor under any other applicable code. 38 C.F.R. § 4.7. The Board notes that this case does not raise a claim for a Total Disability Rating Based Upon Individual Unemployability. Although the Veteran reported his right thumb disability interferes with his ability to work, he reported he has not rendered him unable to work. See May 2012 VA DBQ at 14. Thus, there is no indication that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). 2. Entitlement to an initial compensable disability for tinea cruris (claimed as jock itch). The Veteran contends a compensable disability rating is warranted for his service-connected tinea cruris. See June 2013 NOD. The question for the Board is whether the Veteran has established entitlement to a compensable disability rating for tinea cruris at any time during the appeal period. For the reasons discussed below, the Board concludes a compensable disability rating is not warranted. Diagnostic Code 7813 provides compensation for service-connected dermatophytoses of the body, to include tinea the inguinal area (jock itch, tinea cruris). It is rated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118, DC 7813. Under the General Rating Formula for the Skin, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy is required during the prior 12-month period. A 10 percent rating is warranted when 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The highest disability rating, a 60 percent rating, is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive is required during the past 12-month period. In May 2012, the Veteran underwent a VA disability examination for his (now service-connected) tinea cruris. The Veteran reported he observed an itchy rash in his groin around the time of his service. He had treated it with over-the-counter and prescribed topical medications. Over the years, he observed intermittent flare-ups of the rash. During those flare-ups, he observed dry, itchy, peeling, redness with pain. He described that pain as a 6 out of 10. He added the flare-ups last seven to ten days and he treated it with topical medications. See May 2012 VA DBQ Skin Diseases at 2. The examiner noted the diagnosis of tinea cruris. Id. at 1. The examiner also noted there was no evidence of an active skin rash in the groin area at that time of the exam. Nor any residual scarring. The examiner added that the Veteran’s skin disability did not affect any percentage of exposed area or his entire body. Id. at 4. The examiner noted the Veteran had treated his skin condition with topical medications in the past 12 months, with the total duration of its use amounting to less than six weeks. But no systemic therapy in the past 12 months. Id. at 3. The examiner noted the Veteran’s tinea cruris does not affect his ability to work. Id. at 5. In the Veteran’s July 2015 VA Form 9, he reported he reported he has observed episodes of jock itch on several occasions and continues to suffer from the condition. See VA Form 9 at 1. A. Whether a compensable rating for a tinea cruris was warranted at any time across the appeal period. Turning to the Veteran’s claim for disability compensation, the first question is whether there is sufficient evidence to warrant a compensable (greater than zero percent) disability rating for his service-connected tinea cruris. The Board acknowledges the Veteran’s lay statements regarding the current severity of his disability. He has personal knowledge of the symptoms he has described, to include painful, itchy skin. So, he is competent to report it. Layno, 6 Vet. App. at 469. His statements during his disability examination and in his VA Form 9 consistently indicate he has flare-ups that have been controlled by topical medication. So, the Board finds his statements credible. Even though the Board finds the Veteran’s lay observations credible, he has not reported symptomatology that closely approximates the criteria for a compensable disability rating. Although he has described symptomatology of his service-connected tinea cruris, his observations do not address all the data used to rate this particular condition. Specifically, percentage of the entire body or exposed affected area. Also, if he has received systematic therapy for tinea cruris. See 38 C.F.R. § 4117, DC 7813. The examiner who prepared the May 2012 disability examination gathered the necessary data to evaluate the Veteran’s tinea cruris and those findings do not support assigning a compensable disability rating. In addition to a review of the file, the examiner acknowledged and considered the Veteran’s reports of pain, itchy red skin, and flare ups. See VA DBQ at 2. So, the Board finds the examiner was informed of the relevant details of the Veteran’s past medical history. Nievez-Rodriguez, 22 Vet. App. at 301. Based on the examiner’s findings, the Veteran is entitled to a noncompensable disability rating, which is the rating currently assigned. The examiner found the Veteran’s tinea cruris did not affect at least five percent of his entire body or the affected area. Also, the Veteran did not undergo systematic therapy. At least one of those findings is required for a 10 percent disability rating. Because none of the criteria for a 10 percent disability rating have been shown, the medical evidence weighs against assigning a compensable rating. Based on the findings in the May 2012 VA DBQ, consideration of a 30 percent disability rating is not warranted. A 30 percent rating is warranted when the skin condition affects 20 to 40 percent of the entire body or 20 to 40 percent of the affected area. Or, systematic therapy for a total during of six weeks or more. Since the Veteran’s tinea cruris affects less than five percent of his body and he has not undergone systematic therapy, he does not satisfy the criteria for a 30 percent rating at this time. Because the Veteran does not currently meet the criteria for a 10 or 30 percent disability rating, he has not met the criteria for a 60 percent rating as well. The Board recognizes the Veteran has reported the use of topical medications; however, topical medications do not constitute systemic therapy under VA regulations. Under the VA regulations, 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). The Board notes a search of the record following the May 2012 VA disability examination did not reveal findings or lay observations that suggest the criteria for a 10 percent disability rating is warranted. So, consideration of staged ratings is also not warranted. Hart, 21 Vet. App. at 509-10. In this case, the evidence is not approximately balanced in favor of an increased disability rating. The lay evidence of record did not describe a disability picture suggests a compensable disability rating is warranted. Nor did they provide the data needed to evaluate his claim under DC 7813. In any event, the weight assigned to the more the probative May 2012 VA DBQ provided the necessary data, which showed that the criteria for any higher disability rating under that Code is not warranted. So, reasonable doubt could not be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that a compensable disability rating for his service-connected tinea cruris is not warranted. B. Entitlement to a compensable disability rating under other applicable diagnostic codes. Since the examiner who conducted the May 2012 VA DBQ did not find any other specific skins conditions, scars, malignant neoplasms, tumors or neoplasms, nor systematic manifestations due to a skin disease, like weight loss—consideration of any other DC for his service-connected tinea cruris is not warranted. See VA DBQ at 2, 5, 6. In sum, the evidence of record does not show that the severity of the Veteran’s service-connected tinea cruris rated under DC 7813 warrants a compensable rating at any time during the period on appeal. Hart, 21 Vet. App. at 505. Nor under any other applicable code. 38 C.F.R. § 4.7. The Board regrets a more favorable decision could not be reached in his case. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.