Citation Nr: 21031905 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-36 337 DATE: May 24, 2021 ORDER An initial disability rating in excess of 10 percent for bilateral conjunctivitis is denied. An initial disability rating in excess of 30 percent for bilateral pes planus is denied. A 60 percent initial disability rating for dermatitis from January 21, 2016 to October 23, 2017 is granted; subject to the laws and regulations governing the payment of monetary benefits. A disability rating in excess of 60 percent for dermatitis from October 24, 2017 is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran's bilateral eye disability is manifested by active conjunctivitis, but not by visual acuity of at least 20/70 on one eye, nor is there evidence of a visual field defect, impairment of muscle function, or at least three incapacitating episodes that required treatment within a twelve-month period. 2. For the period on appeal, the Veteran's bilateral pes planus is manifested as bilateral acquired flatfoot that is severe in nature, with pain on manipulation and objective evidence of marked deformity, but not by bilateral acquired flatfoot with marked pronation. 3. From January 21, 2016 to October 23, 2017, the Veteran's dermatitis required constant or near-constant duration of systemic therapy such as corticosteroids or other immunosuppressive drugs over a twelve-month period, but it did not manifest as disfigurement or scarring of the head, face, or neck. 4. From October 24, 2017, the Veteran is in receipt of the highest schedular disability rating available under Diagnostic Code 7806, and her dermatitis is not manifested by any disfigurement or scarring of the head, face, or neck. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for bilateral conjunctivitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6018. 2. The criteria for an initial disability rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5276. 3. From January 21, 2016 to October 23, 2017, the criteria for an initial disability rating of 60 percent for dermatitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.118, Diagnostic Code 7806. 4. From October 24, 2017, the criteria for a disability rating in excess of 60 percent for dermatitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 2000 to July 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in July 2019. In a September 2020 rating decision, the RO assigned a 10 percent initial disability rating for bilateral conjunctivitis effective January 21, 2016 and a 60 percent disability rating for dermatitis effective October 24, 2017. As the rating periods regarding the issues of bilateral conjunctivitis from January 21, 2016 and dermatitis from January 21, 2016 to October 23, 2017 and from October 24, 2017 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993).AB v. Brown. The Board notes that the Veteran was previously represented by Attorney John S. Berry, Jr. In November 2020, the Veteran submitted a VA Form 21-22a in favor of Agent Regena B. Priester (thereby revoking the power of attorney of Attorney John S. Berry, Jr.). See 38 C.F.R. § 14.631(f)(1) (2021). The Board recognizes the change in representation. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent for bilateral conjunctivitis The Veteran seeks a higher initial disability rating for her service-connected bilateral conjunctivitis, which is currently rated as 10 percent disabling under Diagnostic Code 6018, chronic conjunctivitis (nontrachomatous). 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. As the amended regulations went into effect during the period on appeal, both the former and revised criteria under Diagnostic Code 6018 will be considered when evaluating the Veteran's bilateral conjunctivitis. Under the former criteria, Diagnostic Code 6018 instructs to evaluate inactive conjunctivitis based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). 38 C.F.R. § 4.79. For active conjunctivitis (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.), a 10 percent rating is warranted. Id. Under the revised criteria, Diagnostic Code 6018 also instructs to evaluate inactive conjunctivitis based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). 38 C.F.R. § 4.79. For active conjunctivitis, a minimum 10 percent rating is warranted, and further evaluation under the General Rating Formula for Diseases of the Eye may warrant a higher rating. Id. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions. 38 C.F.R. § 4.79 at Notes 1 and 2. Under the amended regulations, a 20 percent rating is warranted for evidence of documented incapacitating episodes requiring at least three but less than five treatments for an eye condition during the past twelve months. 38 C.F.R. § 4.79. Both the former and revised criteria provide for consideration of visual impairment, which is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 20 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/70, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 15/200, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. Based on a review of the relevant evidence, the Board finds that an initial disability rating in excess of 10 percent for bilateral conjunctivitis is not warranted. Specifically, the May 2016 and January 2020 VA examinations and post-service VA and private records reflect active right eye conjunctivitis, which warrants a 10 percent disability rating under the former rating criteria for Diagnostic Code 6018. As the revised rating criteria also assigns a minimum 10 percent rating for active conjunctivitis and instructs to evaluate under the General Rating Formula for Diseases of the Eye, the Board will consider whether a higher rating under the revised rating criteria is warranted. The 2016 and 2020 VA examinations reflect corrected distance measuring 20/20 in the right and left eyes. Further, these examinations, along with post-service VA and private treatment records, are silent for evidence of visual acuity of at least 20/70 in one eye, a visual field defect, impairment of muscle function, to include diplopia, or any incapacitating episodes requiring treatment within a twelve-month period. Here, the medical evidence of record reflects active bilateral conjunctivitis with corrected distance vision measuring no more than 20/20 in the right and left eyes, which equates to a noncompensable (zero percent) disability rating based on visual acuity. Although the record reflects that the Veteran was treated in the emergency room in December 2016 and July 2019 for her bilateral conjunctivitis, there was only one incapacitating episode treatment in 2016 and another in 2019, more than twelve months apart. Thus, a 20 percent disability rating based on at least three incapacitating episodes within a twelve-month period would not be warranted, as the Veteran only experienced two incapacitating episodes requiring treatment for her conjunctivitis, and these episodes were more than twelve months apart. Therefore, the currently assigned 10 percent initial disability rating for bilateral conjunctivitis under Diagnostic Code 6018 is appropriate and a higher rating is not warranted. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 10 percent for bilateral conjunctivitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial disability rating for bilateral pes planus The Veteran seeks a higher disability rating for her service-connected bilateral plantar pes planus, which is currently rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276 (Acquired flatfoot). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria for Diagnostic Code 5276 was not changed. Under Diagnostic Code 5276, a 30 percent rating is assigned for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a. A 50 percent rating, the highest schedular rating allowed, is assigned for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Upon review of the relevant evidence, the Board finds that an initial disability rating in excess of 30 percent for bilateral pes planus is not warranted. Here, the medical evidence of record reflects that the Veteran's bilateral foot disability is severe in nature, with objective evidence of marked deformity. Specifically, the April 2016 VA examination shows pain with use of feet and marked deformity, but the examiner also found no evidence of marked pronation, marked inward displacement or severe spasm of the achilles tendon. During the January 2020 VA examination, the Veteran indicated that use of orthotics provided bilateral foot relief. The examiner noted that the Veteran experienced pain on manipulation of the feet and swelling on use, but there was no evidence of marked deformity, marked pronation, extreme tenderness of plantar surfaces, inward displacement, or severe spasm of the achilles tendon. As the Veteran is already in receipt of a 30 percent disability rating under Diagnostic Code 5276 for bilateral pes planus, for a higher 50 percent disability rating to be warranted, the evidence must show bilateral acquired flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, or severe spasms of the achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances. Here, the medical evidence, to include the 2016 and 2020 VA examinations and post-service VA and private treatment records, fails to show that the Veteran's bilateral pes planus is pronounced in nature, as symptoms of marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasm of the achilles tendon on manipulation are not present. Specifically, these symptoms were not found during the 2016 and 2020 examinations, and post-service treatment records reflect only symptoms of bilateral foot pain on manipulation, swelling on use, and characteristic callosities, which is in line with the current 30 percent disability rating. Therefore, the currently assigned 30 percent initial disability rating for the Veteran's bilateral pes planus under Diagnostic Code 5276 is appropriate and a higher rating is not warranted. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran's bilateral pes planus is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. Additionally, while the 2020 VA examiner noted a diagnosis of bilateral hallux valgus, the associated symptoms were found to be mild or moderate in nature, without any surgery performed. Therefore, a separate rating for hallux valgus under Diagnostic Code 5280 is not warranted as there is no showing of a severe injury necessary for a compensable rating. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 30 percent for bilateral pes planus. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial compensable disability rating for dermatitis from January 21, 2016 to October 23, 2017 4. Entitlement to a disability rating in excess of 60 percent for dermatitis from October 24, 2017 The Veteran seeks higher evaluations for her service-connected dermatitis, which is currently rated as noncompensable (zero percent) from January 21, 2016 to October 23, 2017, and as 60 percent disabling from October 24, 2017 under 38 C.F.R. § 4.118, Diagnostic Code 7806 (Dermatitis or eczema). VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a 10 percent rating is assigned for 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 twelve-month period. 38 C.F.R. § 4.118. A 30 percent rating is assigned for 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 twelve-month period. Id. A maximum 60 percent rating is assigned for 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 twelve-month period. Id. Under Diagnostic Code 7806, dermatitis may also be rated as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805), if applicable, depending on the predominant disability. Id. For claims prior to August 13, 2018, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. See Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). In this regard, a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large 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 facts of each case. Id. at 1356. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that if there is systemic therapy, such treatment must be "like or similar to" a corticosteroid or other immunosuppressive drug to warrant a rating on that basis. See Burton v. Wilkie, 30 Vet. App. 286 (2018). Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Code 7806. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past twelve-month period. 38 C.F.R. § 4.118. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past twelve-month period. Id. A maximum 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past twelve-month period. Id. The General Rating Formula for the Skin also instructs to rate dermatitis under Diagnostic Code 7800 for disfigurement of the head, face, or neck or Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 for scars, if applicable, depending on the predominant disability. Id. Under the new rating criteria, "systemic therapy" and "topical therapy" are specifically defined. Systemic therapy is treatment administered through any route (orally, injection, suppository, intranasally) other than the skin, whereas topical therapy is treatment administered through the skin. 83 Fed. Reg. 32592. Rating period from January 21, 2016 to October 23, 2017 Turning first to the period on appeal from January 21, 2016 to October 23, 2017, upon review of the relevant evidence, the Board finds that an initial disability rating of 60 percent, but no higher, is warranted for the Veteran's service-connected dermatitis under Diagnostic Code 7806. As the amended skin disorder regulations went into effect after the period on appeal, the former criteria under Diagnostic Code 7806 are for application. Here, the May 2016 VA examination reflects that the Veteran's dermatitis was treated with constant/near-constant topical corticosteroids for a period of at least twelve-months. Further, post-service VA treatment records show that the Veteran was prescribed oral medication, specifically, Loratadine, in 2013 that was used to treat her dermatitis. The Veteran continued use of Loratadine orally to treat her dermatitis until she was prescribed Cetirizine orally in October 2017. Here, the medical evidence from January 21, 2016 to October 23, 2017 reflects constant or near-constant systemic therapy, specifically, the oral medication Loratadine, prescribed as treatment for the Veteran's dermatitis over more than a twelve-month period. As such, an initial 60 percent disability rating, the highest schedular rating allowed, for dermatitis from January 21, 2016 to October 23, 2017 is granted. The Board has considered whether a separate or higher disability rating is warranted. To warrant an 80 percent rating under Diagnostic Code 7800, the evidence must demonstrate disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. As the May 2016 and post-service treatment records prior to October 24, 2017 are silent for evidence of any scarring or disfigurement of the head, face, or neck due to the Veteran's dermatitis, a higher rating under Diagnostic Code 7800 is not warranted, nor is a separate rating warranted under Diagnostic Code 7804 (Scars). Rating period from October 24, 2017 Upon review of the relevant evidence, the Board finds that a disability rating in excess of 60 percent from October 24, 2017 is not warranted for the Veteran's service-connected dermatitis. As the amended skin disorder regulations went into effect during the period on appeal, both the former and revised criteria under Diagnostic Code 7806 are for application. Here, as the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7806, a 60 percent disability rating, there is no basis to award a higher disability rating under this diagnostic code. However, the Board has also considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher or separate disability evaluation. As previously stated, for an 80 percent rating to be warranted under Diagnostic Code 7800, the evidence must demonstrate disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. As the January 2020 and post-service treatment records from October 24, 2017 to the present are silent for evidence of any scarring or disfigurement of the head, face, or neck due to the Veteran's dermatitis, a higher rating under Diagnostic Code 7800 is not warranted, nor is a separate rating warranted under Diagnostic Code 7804 (Scars). In sum, the Board finds that an initial 60 percent disability rating, but no higher, is granted for dermatitis from January 10, 2016 to October 23, 2017 under Diagnostic Cod 7806, and a disability rating in excess of 60 percent for dermatitis from October 24, 2017 under Diagnostic Code 7806 is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.