Citation Nr: 21031015 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 09-36 190 DATE: May 20, 2021 ORDER Entitlement to service connection for fingernail discoloration is granted. Entitlement to service connection for an undiagnosed illness, manifested by symptoms of sleep disturbance, weight loss, and fatigue, originally claimed as sleep apnea, to include as secondary to service-connected PTSD, abnormal fatigue and abnormal weight loss, is granted. Entitlement to service connection for a left knee disorder manifested by pain is granted. Entitlement to service connection for tinea versicolor is granted. Entitlement to a disability rating of 10 percent, and no higher, for pseudofolliculitis barbae (PFB) is granted, effective February 24, 2014. Entitlement to a 10 percent disability rating for right fibula fracture effective March 17, 2020 is granted. Entitlement to 10 percent disability rating based on multiple, noncompensable, service-connected disabilities prior to June 29, 2007, effective date for PTSD, is denied. FINDINGS OF FACT 1. Claims of service connection for fibromyalgia, neck disability, right shoulder disability, kidney disability, bilateral upper and lower peripheral neuropathy, entitlement to a compensable rating for residuals right fibula fracture, entitlement to special monthly compensation based on aid and attendance/housebound status and entitlement to service connection for purposes of establishing eligibility for treatment were denied in an April 2012 rating decision. 2. The Veteran filed a timely NOD. Pursuant to the Board's January 2014 remand, the RO issued an April 2020 Statement of the Case. 3. Subsequent to issuance of the April 2020 Statement of the Case, the Veteran did not perfect his appeal of the claims for fibromyalgia, neck disability, right shoulder disability, kidney disability, bilateral upper and lower peripheral neuropathy, entitlement to a compensable rating for residuals right fibula fracture, entitlement to special monthly compensation based on aid and attendance/housebound status and entitlement to service connection for purposes of establishing eligibility for treatment. 4. Because an appeal was not perfected the April 2012 rating decision became final. 5. Resolving doubt in the Veteran's favor, the Veteran's fingernail discoloration began during active service. 6. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 7. The probative evidence of record shows that the Veteran has current sleep disturbances, weight loss, and fatigue that are symptoms of an undiagnosed illness. 8. The evidence is at least in equipoise as to whether the Veteran's left knee disorder manifested by pain began during active service. 9. The evidence is at least in equipoise as to whether the Veteran's tinea versicolor began during active service. 10. The evidence is at least in equipoise that since February 24, 2014, the Veteran's PFB is manifested by characteristic lesions involving at least 5 percent, but less than 20 percent, of exposed areas affected. 11. Since March 17, 2020 the Veteran's right fibula fracture is manifest by symptoms most analogous to malunion of tibia and fibula with slight knee or ankle disability but not malunion of the tibia and fibula with moderate knee or ankle disability or medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. 12. Prior to June 29, 2007 the Veteran was service connected for multiple, noncompensable disabilities. 13. Although the Veteran's multiple service connected, noncompensable disabilities are permanent disabilities, none of the disabilities or the disabilities individually or collectively clearly interfered with the Veteran's normal employability. CONCLUSIONS OF LAW 1. The criteria for service connection for fingernail discoloration have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for an undiagnosed illness manifest by symptoms of fatigue, sleep disturbances, and abnormal weight loss, have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for service connection for left knee pain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinea versicolor have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a rating in excess of 10 percent for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 6. The criteria for a rating in excess of 10 percent for right fibula fracture have not been met under pre- or post- February 7, 2021 rating criteria. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 7. The criteria for a 10 percent disability rating based on multiple, noncompensable, service-connected disabilities prior to June 29, 2007, have not been met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1990 to August 2000, and from August 2002 to July 2003. This case is before the Board of Veterans' Appeals (Board) from an October 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at an August 2013 hearing. In January 2014, the claims of service connection for left knee pain, right fibula, psychiatric disorder, sleep impairment disability, weight loss disability, fatigue disability, fingernail disability, tinea versicolor, entitlement to a compensable disability rating for PFB, and entitlement to 10 percent disability rating based on multiple, noncompensable, service-connected disabilities were remanded to the RO for additional development. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. The January 2014 decision also noted that claims of service connection for fibromyalgia, neck disability, kidney disability, right shoulder disability, peripheral neuropathy of bilateral upper and lower extremities, special monthly compensation and service connection for establishing eligibility for treatment were denied by an April 2012 rating decision (4/12/2012 Rating Decision Codesheet). A March 2013 Form 9 had been received and construed as a timely notice of disagreement of the April 2012 rating decision (3/27/2013 Form 9; 01/14/2014 BVA Decision, pg. 13). No statement of the case (SOC) had been issued. The Board remanded those claims for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). An April 2020 SOC was issued (4/10/2020 SOC) confirming the denial of the claims. Subsequent to issuance of the SOC, the Veteran did not submit a Form 9 or otherwise perfect his appeal. The April 2012 decision became final. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). As a separate matter, the Board notes that prior rating decisions in March 2003 (left knee; increase in rating for PFB; entitlement to rating of 10 percent for noncompensable disabilities), September 2004 (increase in rating for PFB; discoloration of fingernails; sleep impairment; tinea versicolor), and February 2006 (increase in rating for PFB; discoloration of fingernails; entitlement to rating of 10 percent for noncompensable disabilities) did not become final. As outlined in the January 2014 decision, evidence was received within one year of the decisions, preventing them from becoming final. Accordingly, new and material evidence analysis is not required for the claims. Also in January 2014, the issues of entitlement to service connection for a back disability, for hypertension, and for disabilities manifested by dizziness, fainting, light headedness, muscle aches, were found to have been raised by the record, but had not been adjudicated by the AOJ. Because the Board did not have jurisdiction over these issues, they were referred to the AOJ for appropriate action. A review of the record since the January 2014 referral reveals the AOJ has not addressed the back disability raised by the record. Also, the record has raised a claim of service connection for redness of the eyes and tearing, that has not been addressed by the AOJ, therefore the Board does not have jurisdiction of the issue (03/27/2013 Form 9). Accordingly, the Veteran's claims for back pain and eye disabilities are referred to the AOJ for appropriate action. As a final point of clarification, it is noted that the Veteran's claim of service connection for headaches was granted in the Board's January 2014 decision (1/14/2014 BVA Decision, pg. 8; 4/04/2014 Rating Decision - Narrative). Additionally, the Veteran has been granted service connection for PTSD, with secondary unspecified bipolar and related disorder and alcohol use disorder, claimed as depression (2/04/2021 Rating Decision - Narrative). Because the benefit sought on appeal has been granted, these matters are no longer before the Board. Service Connection 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 also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, a veteran who served in the Southwest Asia theater during the Persian Gulf War and exhibits objective indications or symptoms of a qualifying undiagnosed illness or a medically unexplained chronic multi-symptom illness, so long as the objective symptoms occurred either during service in the Southwest Asia theater or manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Fingernail discoloration. The Veteran contends that when he entered service his fingernails were clear. He states that they turned black after a fuel line burst during service and he was covered with fuel. The Veteran contends that since that time his fingernails have been discolored and scaly (8/22/2013 Hearing Testimony, pgs. 7-8; 2/24/2020 VA 21-526EZ, Fully Developed Claim; 11/08/2019 VA 21-4138 Statement In Support of Claim). Post-service records reveal the Veteran's consistent description of the discoloration of his fingernails beginning in the early 1990s (6/11/2014 CAPRI). The Veteran was afforded a December 2020 VA examination. At that time, a diagnosis with fingernail discoloration was confirmed, described as darkened fingernails on bilateral hands (12/30/2020 C&P Exam, pg. 3). The Veteran's shipboard service is confirmed by the record, and the Board finds his testimony regarding a fuel spill to be credible. A buddy statement of record provides a witness account of the fuel line burst as described by the Veteran (1/16/2021 VA 21-4138 Statement In Support of Claim, pg. 4). Taken together the Board finds the evidence suggests there was an inservice fuel line burst, spilling fuel on the Veteran. Finding the first two elements of service connection have been met, the Board turns to whether there is a causal relationship between the current disability and the in-service fuel line burst. The Board concludes that the evidence is at least in equipoise that the Veteran has a current disability that had its onset during service or is related to and in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's service treatment records reference a finger laceration and a burn to a finger, but do not reveal complaints or diagnoses of any fingernail issues (11/12/2004 STR Medical, pgs. 69 and 99). Upon separation, the Veteran did not reference fingernail issues, although skin complaints were noted during a June 2003 post deployment physical (3/27/2013 STR). Post-service records, however, reveal a June 2004 complaint of discoloration of fingernails. At that time, black lines were noted on three fingernails, with no thickening or other discoloration. His nails were assessed as normal, and no treatment was provided (12/03/2007 Medical Treatment Record - Government Facility, pg. 11) A March 2014 VA examination revealed all fingernails on both hands appeared dark or discolored, with black vertical lines (5/12/2020 CAPRI, pg. 32). The Veteran was afforded a December 2020 VA examination. The examiner did not provide a nexus opinion at that time, stating it would be mere speculation based on the current available records to comment on whether the Veteran's fingernail disability had its clinical onset during active service or is related to any in service disease, event or injury, to a fuel line burst, pouring fuel on his fingers. The examiner cited to a lack of in-service medical documentation, and found the lack of records was offset by the fact that discolored fingernails were not present on his enlistment and then documented almost immediately after his separation from active duty service (12/30/2020 C&P Exam, pg. 4). In weighing the evidence, the Board finds the Veteran credible in his description of a darkening of his fingernails during service. While the December 2020 VA examiner could not provide a nexus opinion, citing it would require speculation, the rationale essentially described the medical evidence as in equipoise. The record does not suggest the Veteran or the friend that provided the buddy statement possess medical expertise or experience, qualifying them to render competent nexus opinions in this case. Nonetheless, the lay statements of record describe the fuel bursting aboard ship, and the Board finds discoloration of fingernails would be observable to a layperson. For the reasons set forth, after review of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran's current fingernail discoloration arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for fingernail discoloration is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Undiagnosed illness, manifest by symptoms of sleep disturbance, weight loss, and fatigue, originally claimed as sleep apnea, to include as secondary to service-connected PTSD, abnormal fatigue and abnormal weight loss. The Veteran contends that while serving as an Operations Specialist in the Navy, he worked irregular hours. This schedule resulting in a change in his sleep patterns that he has never been able to correct. He described his sleep being limited to usually 3-4 hours a night and having been prescribed sleep medication (8/22/2013 Hearing Testimony, pgs. 17-88). The Veteran has claimed his sleep disability as sleep apnea, and as secondary to service-connected posttraumatic stress disorder (2/24/2020 VA 21-526EZ, Fully Developed Claim). The Veteran has also contended he has had fatigue symptoms since service, and attributes them to his body being used to in-service conditions (8/22/2013 Hearing Testimony, pg. 24). The Veteran contends he has lost approximately 10 pounds since service, due to a loss of appetite, and sometimes becoming nauseated when he eats. He testified that this happened while he was in the service, first noticing it in approximately 2000 (8/22/2013 Hearing Testimony, pgs. 20-23). For the reasons set forth below, the Veteran's separate claims for service connection for sleep apnea, to include as secondary to service-connected PTSD, abnormal fatigue and abnormal weight loss have been recharacterized as symptoms of an undiagnosed illness. The Board notes the Veteran is Persian Gulf War Veteran, who has served in the Southwest Asia theater of operations, specifically including the Red Sea (3/05/2020 CAPRI, pgs. 46 and 627; 3/23/2004 Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). Fatigue, sleep disturbances, and abnormal weight loss are recognized as signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of compensation for Persian Gulf veterans under 38 C.F.R. § 3.317(a). See 38 C.F.R. § 3.317(b)(1), (9), and (12). The Board has considered medical evidence of record that is against a finding diagnoses of sleep disturbance, fatigue, and abnormal weight loss. The Veteran has not been diagnosed with sleep apnea (06/11/2014 CAPRI, pg. 14), and an August 2017 sleep study was normal (11/13/2017 CAPRI, pg. 17). Likewise, a December 2020 VA examination provided there was insufficient objective evidence to support the Veteran's claim of chronic fatigue syndrome (12/05/2020 C&P Exam, pg. 2). During a March 2014 sleep apnea examination, the Veteran's weight loss was attributed to stress and poor appetite (11/13/2017 CAPRI, pg. 34). Despite the foregoing, of record is a January 2021 opinion (1/23/2021 C&P Exam) weighing in favor of a finding for service connection. The January 2021 examiner considered the Veteran's symptoms of sleep impairment, weight loss, and fatigue. The examiner determined, after examining the Veteran and reviewing the claims file, that the Veteran's disability pattern is an undiagnosed illness and related his symptoms to his service in the Southwest Asia theater of operation. The Board finds this opinion to be the most probative medical evidence of record, because it is based on a full review of the Veteran's medical file and consideration of his service record. Additionally, the examiner considered the Veteran's symptoms collectively in relation to his service, as opposed to each symptom in isolation. In light of the probative medical evidence of record, taken in conjunction with the Veteran's description of the nature and onset of his symptoms, the Board finds the criteria for service connection for an undiagnosed illness manifesting with sleep disturbances, weight loss, and fatigue have been met. 38 C.F.R. § 3.317. 3. Left knee injury. The Veteran contends that his left knee was injured during service, when he was wrestling with a fellow service member aboard ship. He recalls his knee swelling, limping after the injury, and treating himself with ice and asprin. The Veteran asserts that his knee never completely healed. The Veteran also asserted that the injury disqualified him from officer candidate school and has required him to wear a brace since approximately 2000 (8/22/2013 Hearing Testimony, pgs. 3-5). The Veteran has also contended his left knee disability is secondary to his service-connected right leg disability, residual pain status post right fibula fracture (2/24/2020 VA 21-526EZ, Fully Developed Claim; 2/04/2021 Rating Decision - Codesheet) Of record is an April 2012 diagnosis of left knee pain, also noting functional loss, as well as a July 2020 private physician confirmation of left knee diagnoses, traumatic arthritis and chondromalacia and collateral ligament laxity (4/07/2012 VA Examination, pgs. 1 and 6; 2/05/2021 Medical Treatment Record - Non-Government Facility, pg. 3). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). The Board finds the Veteran's pain is a functional impairment meeting the definition of a disability for VA purposes. Review of the Veteran's service treatment records reveal a number of complaints regarding the right knee; however, in August 2020, the Veteran indicated a possible intention to seek VA compensation for both his right and left knees (09/03/2003 STR Medical, pg. 6). While not entirely dispositive, this annotation suggests the Veteran had left knee issues in service. A post-service December 2003 note includes the Veteran's history of several left knee injuries from playing sports, although whether this was during service is not clear from the note. (12/03/2007 Medical Treatment Record - Government Facility, pg. 7). In September 2008, the Veteran described bilateral knee pain that began during service in 1993 (9/02/2008 VA Examination). Taken in conjunction with the Veteran's hearing testimony of a knee injury while wrestling during service, the Board finds the evidence is at least in equipoise of an in-service injury to the Veteran's knee. Resolving doubt in the Veteran's favor, the Board concludes the Veteran has a current left knee disability with an inservice injury, meeting the first two elements of service connection. The Board turns to whether the Veteran's current disability is related to his in-service injury. Turning to the medical evidence of record, the Board notes that in October 2003, the Veteran was given an examination for his right leg/broken fibula. At that time, references to picking up heavy loads on the ship, playing softball, flag football and basketball were made. No problems with his gait were noted. Although his left leg was not addressed, the Veteran did indicate that he declined to seek medical treatment because he did not want to be put on medical hold, and wanted to be discharged. While this note pertains to his right leg, it does provide some insight into the Veteran's mindset about seeking medical treatment during service. July 2011 treatment notes that reference a left knee study that was normal (4/11/2012 CAPRI, pg. 32). In April 2012, the Veteran was diagnosed with left knee pain, and less movement than normal; pain on movement was noted (04/07/2012 VA Examination, pg. 1 and 6). An April 2012 radiology report for the Veteran's left knee revealed no fracture or dislocation, no arthritic or destructive change seen. Joint effusion was suggested, and a well-defined calcification was noted along the inferior margin of the patella. No acute findings were noted (4/11/2012 CAPRI, pg. 41). The Veteran was afforded a February 2014 VA examination. The examiner did not find the Veteran had a knee condition and opined any left knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran reported pain over his medial collateral ligament (not medial joint line) without any instability history. This is likely a bursitis that is completely unrelated to his service activities and injury (02/15/2014 C&P Exam, pgs. 2 and 7). An October 2015 VA examiner found the Veteran did not have a current diagnosis associated with his left knee pain, although the Veteran's report of functional loss was noted as was pain on palpitation (10/06/2015 C&P Exam, pg. 2, 3). A March 2020 VA examiner confirmed the Veteran's diagnosis with a left knee strain, noting functional loss due to pain, also noting the examination is medically consistent with the Veteran's statements describing functional loss during flare up The March 2020 examiner provided an opinion with regard to secondary service connection only, finding that the Veteran's left knee strain was unrelated to his service-connected right fibula fracture. It was explained that the right fibula fracture was not severe enough to reasonably be the cause of the left knee condition (3/17/2020 C&P Exam, pg. 17; 3/17/2020 C&P Exam (opinion)). In a July 2020 private opinion of record, a physician confirmed left leg diagnoses of traumatic arthritis and chondromalacia of the left knee and lateral collateral ligament laxity of the left knee. The private practitioner opined that it is more likely than not that the Veteran's described fall caused a severe contusion of the anterior tibial tuberosity of the left knee, the distal patellar tendon the patella and the right patella. The fall caused injury to the cartilage in the right knee and the left knee the injury to the cartilage caused chondromalacia and loss of tissue in the left knee causing laxity of the lateral collateral ligament of the left knee (02/05/2021 Medical Treatment Record - Non-Government Facility, pg. 3). In weighing the evidence, the Board finds the July 2011 normal studies suggest that the diagnoses as described by the July 2020 practitioners manifested after service. However, the medical evidence of record does reveal a pattern of left knee pain that the Veteran associates with an initial injury while serving in the Navy. While the record does not suggest the Veteran possesses specialized knowledge or medical expertise to provide an opinion as to his left leg diagnoses or nexus to service, the Board must consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran has competently described the onset of his initial pain in his left knee, and that it has not subsided since service, with recurring episodes of swelling, requiring the wearing of a knee brace. Taken in conjunction with the medical evidence of complaints of left knee pain over the years, the Board finds the evidence is at least in equipoise as to whether the Veteran's current left knee pain arose in or is related to service. Accordingly, resolving all doubt in favor of the Veteran, the Board finds that service connection for left knee pain is warranted. As entitlement to service connection on a direct basis has been found, further discussion of the Veteran's contention of secondary service connection is not necessary. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Tinea Versicolor. The Veteran contends that his tinea versicolor, claimed as a rash on his back, began during service, to include as a result of a fuel line burst, covering his back with fuel (8/22/2013 Hearing Testimony, pg. 7). The Veteran was afforded a December 2020 VA examination. At that time, a diagnosis with tinea versicolor was confirmed, described as back lesions that itch periodically. (12/30/2020 C&P Exam, pg. 3). As described in the section of this decision discussing the Veteran's fingernail discoloration, the Board conceded the in-service incident of a fuel line burst, meeting the second element of service connection. As the first two elements are met, the Board turns to whether there is a causal relationship between the current disability and active service. The Board concludes that the evidence is at least in equipoise that the Veteran has a current disability that had its onset during service or is related to and in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The June 2003 post deployment health assessment reveals a complaint of skin rash on his back, and compliant of skin disease or rash (3/27/2013 STR, pgs. 7 and 8). In October 2003, the Veteran was assessed with possible tinea versicolor on his back (10/14/2003 VA Examination, pg. 3). The December 2020 VA examiner did not provide a nexus opinion, stating it would be mere speculation based on the current available records to comment on whether the Veteran's skin disability had its clinical onset during active service or is related to any in service disease, event or injury, to a fuel line burst, pouring fuel on his back. The examiner cited to a lack of in-service medical documentation, and found that was offset by the fact that the rash was present at enlistment and was documented almost immediately after his separation from active duty service (12/30/2020 C&P Exam, pg. 4). In weighing the evidence, the Board finds the Veteran credible in his description of the onset of his rash during service. Likewise, the Board finds the Veteran's post deployment complaints of a rash on his back, when taken in conjunction with the October 2003 assessment of possible tinea versicolor, suggest in-service onset. While the December 2020 VA examiner could not provide a nexus opinion, citing it would require speculation, the rationale essentially described the medical evidence as in equipoise. For the reasons set forth, after review of the record, the Board finds the evidence to be at least in equipoise, and resolving doubt in the Veteran's favor, the Board finds the Veteran's tinea versicolor had its onset during service. Accordingly, the Veteran's claim of service connection for tinea versicolor is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings 5. Compensable rating for Pseudofolliculitis Barbae. The Veteran contends that he is entitled to a compensable rating for his pseudofolliculitis barbae (PFB), describing bumps on his face that persist despite various treatment (8/22/2013 Hearing Testimony, pg. 30). The Veteran was assigned a non-compensable rating for PFB, under Diagnostic Code 7806, effective August 24, 2000 (2/04/2021 Rating Decision - Codesheet). In June 2007, he filed a claim for increased rating (06/22/2007 Third Party Correspondence). During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran's claims. The Veteran's predominant disability is PFB, and has been rated pursuant to DC Code 7806. The rating criteria for DC 7806 from August 30, 2002 to October 22, 2008 provided as follows: 7806 Dermatitis or eczema. A 60 percent disability rating 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 A 30 percent disability rating 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 10 percent disability rating 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 noncompensable rating 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-month period or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. From October 23, 2008 to August 13, 2018, the rating criteria for DC 7806 remained unchanged. Effective August 13, 2018, Diagnostic Code 7806 Dermatitis or eczema was to be evaluated under the General Rating Formula for the Skin: General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824: A 60 percent disability 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 A 30 percent rating for at least one of the following: 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 6 weeks or more, but not constantly, over the past 12-month period A 10 percent rating 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 noncompensable rating 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 or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. Also, under the new General Rating Formula for the Skin, the rating criteria notes that for the purposes of that section, 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. The Court has found that the Board must make an explicit finding as to whether treatment used was "constant or near-constant systemic therapy," or discuss whether treatments other than corticosteroids or immunosuppressive therapies can constitute such therapies under DC 7806. See Warren v. McDonald, 28 Vet. App. 194, 198 (2016); see Burton v. Wilkie, 30 Vet. App. 286, 290 (2018) (defining "systemic" as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases"). In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Turning to the medical evidence of record, in October 2003, the Veteran was examined and hyperpigmented papules were noted in the beard area under the jaw bilaterally, including few pustules. His PFB was described as a chronic and intermittent. Post-service treatment records from June 2011 indicate the Veteran denied rashes, itching, lumps or lesions. In October 2011, his skin was assessed as dry and intact with good turgor and texture (4/11/2012 CAPRI, pgs. 8, 37-38). On February 24, 2014, the Veteran's PFB was characterized by scattered papules on face and anterior neck, with no pustules or scarring. The skin over the beard area was described as darker than the surrounding, and impacting 5 to 20 percent of the exposed area, but less than 5 percent of the Veteran's total body area (6/11/2014 CAPRI, pg. 13). Although treatment with oral or topical medications in the previous 12 months was not noted, the Board recognizes that the area impacted by PFB, as described during this examination, suggests an increase in severity of symptoms as compared to previous examinations. During the Veteran's September 2015 examination, no treatment or active PFB was noted per report or examination. The September 2015 examiner did not find any scarring or disfigurement from the former PFB. The Veteran had not been treated with oral or topical medications in the prior 12 months (05/12/2020 CAPRI, pg. 19). A July 2020 private opinion confirmed the Veteran's PFB, that the Veteran continues to have to wear a beard, and described scarring of his chin and cheeks (2/05/2021 Medical Treatment Record - Non-Government Facility pg. 2). After a review of the medical evidence, the Board finds that the February 2014 examination suggests the Veteran had a worsening of his PFB symptoms, at which time his PFB impacted 5 to 20 percent of the exposed area, and less than 5 percent of his total body area, more nearly approximating a 10 percent rating. Although the September 2015 examiner found no active PFB, in July 2020, the private physician indicated the Veteran continues to have to wear a beard, noted scarring of his chin and cheeks. Taken in conjunction with the October 2003 evidence that his PFB is chronic and intermittent, and the Veteran's August 2013 testimony referencing the scars on his face, and the effort required, at that time by shaving, to prevent symptoms, suggests a worsening of his PFB symptoms. The Board interprets the conflict between the August 2013 shaving by the Veteran, and the July 2020 medical evidence indicating use of a beard, as evidence of the Veteran's difficulties in managing his diagnosed PFB, resulting in documented increased symptomatology as of March 5, 2014. This increase in symptoms most closely aligns with the 10 percent disability rating 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 as described by the pre-August 13, 2018 rating criteria. The Board considered whether a higher disability rating is warranted pursuant to the current rating schedule or under the version in effect prior to August 13, 2018. The medical evidence does not suggest 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 6 weeks or more, but not constantly, over the past 12-month period. Likewise, the medical evidence of record does not suggest that the Veteran's PFB symptoms involved more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected at any time. Systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period is not recorded. Accordingly, a rating higher than 10 percent is not warranted, regardless of which criteria is applied to the Veteran's symptoms. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for a higher disability evaluation under both the pre and post August 13, 2018 diagnostic criteria. The evidence does not suggest any other diagnostic code would be more appropriate or that the Veteran 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 at least in equipoise that the Veteran's PFB symptoms have manifested to a compensable degree most consistent with a 10 percent disability rating, and no higher, from March 5, 2015. Accordingly, the Veteran's claim is granted. 6. Right fibula. The Veteran originally claimed and appealed his right fibula fracture, contending his disability warranted a compensable disability rating. Since this matter was last before the Board, the Veteran has been assigned a 10 percent disability rating, effective October 22, 2020 (2/04/2021 Rating Decision - Codesheet). The question for the Board remains whether a compensable rating is warranted prior to October 22, 2020, and whether a rating in excess of 10 percent is warranted after that date. The Veteran's right fibula fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. As of February 7, 2021, under the amended criteria, Diagnostic Code 5262, impairment of the tibia and fibula assigns 40 percent rating for nonunion of, with loose motion, requiring brace; and malunion should be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 30 percent disability rating is assigned for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; A 20 percent rating for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; A 10 percent rating for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; A noncompensable rating is assigned for treatment less than 12 consecutive months, one or both lower extremities. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination The Veteran was afforded a VA examination for his right fibular fracture in October 2003. At that time there was no pain and no restriction in range of motion of the legs (10/14/2003 VA Examination, pg. 3). In April 2012, the Veteran underwent a VA examination of the lower legs. Although not focused on his right tibia and fibula, the Board will take this examination into consideration. At that time, right knee flexion was limited to 130 degrees, with no additional loss of range of motion noted due to pain and was 135 after repetition. Additional functional loss was not indicated (5/12/2020 CAPRI, pgs. 42, 43, 45, and 46). During a February 2014 VA examination of the lower legs, no range of motion limitations or objective evidence of painful motion was noted in the Veteran's right knee, and no functional loss was noted due to pain, instability, or repetition (05/12/2020 CAPRI, pgs. 36 and 38). Again, although not focused on his right tibia and fibula, the Board will consider this examination. A November 2015 knee and lower leg examination is also of record. At that time, the Veteran's right knee was assessed as normal and X-rays of the tibia/fibula were described as unremarkable (05/12/2020 CAPRI, pgs. 1, 2, and 6). In March 2020, the Veteran was also afforded an examination for the knee and lower leg. The Veteran reported intermittent bilateral knee pain at that time, with an inability to run, walk, or stand for a long period of time. He also had trouble lifting heavy objects. Objectively, his right knee flexion was limited to 130 degrees, and his inability to fully flex his knee was noted. Pain was noted to cause functional loss, resulting in range of motion limitation to 130 degrees on both flexion and extension. On flareups the decrease in range of motion was estimated to be the same. No ankylosis was noted (3/17/2020 C&P Exam). In October 2020 the Veteran was afforded an examination for his right fibula. Again, the Veteran's complaint of worsening right knee and leg condition was noted along with limitations of prolonged standing, walking and running. His right knee range of motion on flexion and extension was limited to 135 degrees, with pain causing functional loss, estimated to reduce range of motion limitation further to 125 degrees. Additional functional loss on repetition was not reported. No ankylosis was noted, and occasional use of a brace as an assistive device due to residual pain status post right tibia fracture was identified. In the associated medical opinion, the examiner noted that the Veteran had been experiencing pain since 2000, although an X-ray of the knee in October 2020 indicated normal and no degenerative changes (12/05/2020 C&P Exam). A July 2020 independent medical examination by a private examiner is also of record. Pain behind the Veteran's right kneecap was noted, with weather bothering his right knee mildly. Examination of the right ankle revealed some hypertrophy of the distal fibula and laxity of the talofibular ligament of the right ankle. His antalgic gait is attributed to his left knee, as opposed to the right ankle (8/07/2020 Medical Treatment Record - Government Facility, pgs. 3 and 5). In weighing the record, the Board finds that while as early as April 2012 the evidence suggests a slight right knee disability as demonstrated by limitation of flexion, the medical evidence does not suggest malunion of tibia and fibula, such as to warrant a compensable rating. In this regard, the November 2015 examination referenced unremarkable X-rays of the tibia/fibula weighing against the Veteran's claim for a compensable rating at that time. The Board finds however, that the March 17, 2020 VA examination suggests a worsening of the Veteran's right knee symptoms, as it noted functional loss. This worsening was confirmed by the October 2020 VA examination and suggested by the July 2020 private examination. Accordingly, the Board finds the medical evidence indicates that a compensable rating is warranted effective March 17, 2020. The Board acknowledges the Veteran's lay reports that his right knee and leg condition is worsening, with reports of intermittent sharp pain in the right knee and leg (12/05/2020 C&P Exam, pg. 4). Even considering the Veteran's lay reports and symptoms, to include as described during examinations of record, the Board finds that the symptoms do not suggest that the Veteran's symptoms more nearly approximate malunion of the tibia or fibula with moderate knee or ankle disability warranting a 20 percent disability rating. The Board also considered the post February 7, 2021 criteria. The medical evidence does not suggest a 20 percent rating for medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. The Board has also considered the other diagnostic codes pertaining to the knee and leg and finds that none under either the pre or post February 7, 2021 criteria are more appropriate or would result in a more beneficial rating for the Veteran. In conclusion, the Board finds that the preponderance of the evidence is in favor of a disability rating of 10 percent and no higher, effective March 17, 2020, for service-connected right fibula fracture. 7. Compensation 10 percent 38 C.F.R. § 3.324 prior to June 29, 2007. The Veteran has asserted entitlement to a 10 percent disability rating pursuant to 38 C.F.R. § 3.324, while he was service connected for more than one disability, at non-compensable ratings. Pursuant to 38 C.F.R. § 3.324, when a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities are assigned a compensable rating, a 10 percent rating may be assigned. From August 24, 2000 until June 29, 2007, the effective date of the Veteran's compensable rating for service-connected PTSD, the Veteran was assigned non-compensable ratings for right fibula fracture and pseudofolliculitis barbae (08/14/2001 Rating Decision Codesheet; 02/04/2021 Rating Decision - Codesheet). The question for the Board is whether, prior to June 29, 2007, the Veteran's non compensable disabilities clearly interfered with his normal employability. The Board finds the Veteran's right leg disability and his PFB are both permanent disabilities, as are the disabilities granted by this decision. The record does not suggest however, that any of the disabilities or the disabilities collectively have clearly interfered with normal employability. During his hearing, when asked about missing time from work due to his right leg disability, he explained that his work ethic does not permit him to miss work and did not indicate but for his work ethic, any of his disabilities interfered with normal employability (8/22/2013 Hearing Testimony, pg. 34). In light of the foregoing, the preponderance of the evidence of record weighs against the claim of entitlement to a 10 percent disability rating pursuant to 38 C.F.R. § 3.324, prior to June 29, 2007, and the claim is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.