Citation Nr: 23054294 Decision Date: 09/28/23 Archive Date: 09/28/23 DOCKET NO. 20-08 104 DATE: September 28, 2023 ORDER Entitlement to a rating in excess of 10 percent for a left hand condition is denied. Entitlement to a compensable rating for bilateral plantar keratosis is denied. New and material evidence having been received, the claim for service connection for manic depressive illness and bipolar disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include manic depressive illness and bipolar disorder, is remanded. Entitlement to service connection for a headache condition is remanded. FINDINGS OF FACT 1. The Veteran's left hand condition was not manifested by favorable or unfavorable ankylosis. 2. The Veteran's bilateral plantar keratosis is not shown to involve at least five percent of his entire body or at least five percent of his exposed areas, or to have been productive of localized or episodic cutaneous involvement, and is not treated systemically. 3. A March 2012 rating decision denied service connection for manic depressive disorder and bipolar disorder; the Veteran filed a notice of disagreement with that decision but did not timely perfect an appeal following issuance of a statement of the case (SOC). 4. Some of the evidence received since the November 2014 SOC relates to an unestablished fact necessary to substantiate the previously denied claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a left hand condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes (DCs) 5214, 5215. 2. The criteria for entitlement to a compensable rating for bilateral plantar keratosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, DC 7824. 3. The March 2012 rating decision that denied service connection for manic depressive disorder and bipolar disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen the claim for service connection for manic depressive disorder and bipolar disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from June 1980 to June 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 Regional Office (RO) rating decision. The Board notes that it has expanded the Veteran's claim of entitlement to service connection for manic depressive disorder and bipolar disorder to one of entitlement to service connection for an acquired psychiatric disorder, to include those diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). INCREASED RATINGS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. 1. Entitlement to a rating in excess of 10 percent for a left hand condition The Veteran filed this increased rating claim on April 20, 2016. He is seeking a higher rating than the 10 percent rating current assigned for his left hand condition under DC 5215. Changes to the rating schedule for musculoskeletal disabilities became effective on February 7, 2021. However, the DCs for evaluating disabilities of the wrist, which are applicable here, remain unchanged. DC 5215 provides for a maximum 10 percent rating for both the major and minor extremity where there is limitation of motion of the wrist with dorsiflexion to less than 15 degrees or palmar flexion limited in line with the forearm. In order to warrant a rating in excess of 10 percent, ankylosis of the wrist must be shown. DC 5214 provides that where there is ankylosis of the wrist that is favorable in 20 degrees to 30 degrees of dorsiflexion, a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity is warranted. A 40 percent rating is assigned for wrist ankylosis in any other position, except favorable of the major extremity and a 30 percent rating is assigned for the minor hand. A 50 percent rating is assigned for unfavorable wrist ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the major extremity and a 40 percent rating is assigned for the minor extremity. An accompanying note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125. Based on the rating criteria set forth above, in order to warrant a rating in excess of 10 percent, the evidence must show the Veteran's left hand condition was manifested by ankylosis. However, a May 2016 VA examination of the Veteran's left wrist does not show ankylosis. The Veteran reported daily stiffness, but no flare-ups or functional loss. On range of motion examination, the examiner noted left wrist palmar flexion to 50 degrees, dorsiflexion to 50 degrees, ulnar deviation to 40 degrees, and radial deviation to 15 degrees. The examiner stated that pain was noted on exam but does not result in/cause functional loss. Additionally, no pain with weight bearing or evidence of crepitus was shown. The Veteran was able to perform repetitive testing with no additional loss of range of motion or function. Finally, the Veteran exhibited full muscle strength and no atrophy. The May 2016 VA examination does not establish ankylosis or its functional equivalent, and VA treatment records do not show ankylosis. Accordingly, the criteria for a rating in excess of 10 percent for a left hand condition have not been met. The Board has considered whether a higher rating would be warranted under any other diagnostic code but finds it would not. As the evidence is persuasively against entitlement to a rating in excess of 10 percent for a left hand condition, the claim must be denied. 2. Entitlement to a compensable rating for bilateral plantar keratosis In his April 20, 2016 claim, the Veteran also sought a compensable rating for his bilateral plantar keratosis. The Board finds that this claim for increase must also be denied. The Veterans' bilateral plantar keratosis is rated under DC 7824, which rates for diseases of keratinization. During the pendency of this appeal, VA amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under new, revised criteria, the award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Prior to August 13, 2018, under DC 7824, a noncompensable rating is warranted for no more than topical therapy during the past 12-month period. A 10 percent rating is warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent rating is warranted where there is either generalized cutaneous involvement or systemic manifestations, and; intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is warranted with either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period. Id. Following amendment of the rating criteria in 2018, a new General Rating Formula for the Skin applies to certain DCs, including 7824. The General Rating Formula for the Skin provides for a noncompensable rating when there is 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 the exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. Id. A 30 percent rating is assigned 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. Id. Finally, 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 12-month period. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, 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. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "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 Veteran underwent a VA examination in August 2016. The examiner noted that the Veteran underwent surgical procedure for hammertoe correction of the left foot and on August 9, 2012 he was treated for bilateral plantar keratosis below his left toe. The examiner noted that the Veteran's bilateral plantar keratosis was trimmed on both occasions since his last examination and that the Veteran continues to have bilateral foot pain associated with plantar keratosis. The examiner also noted that the Veteran was last seen on July 21, 2016 and underwent trimming of areas on left foot x 2. Finally, the examiner noted that the Veteran was not treated with oral or topical medications in the past 12 months, underwent no treatments or procedures other than systemic or topical medications in the past 12 months, and had no debilitating or non-debilitating episodes in past 12 months. Podiatry records throughout the appeal period generally document continued treatment of the Veterans bilateral plantar keratosis, including trimming of areas. Based on this evidence, the Board does not find that a compensable rating is warranted for the Veteran's bilateral plantar keratosis. In this regard, his condition has not been shown to exceed 5 percent of his total body area, let alone 5 percent of his exposed skin area. Generalized cutaneous involvement or systemic manifestations have not been shown. He has never required systemic therapy or used topical therapy. As such, the criteria for a compensable rating under either the old or new rating criteria are not met by the evidence of record. As the evidence is persuasively against the claim for a higher rating, the benefit of the doubt doctrine does not apply, and the claim must be denied. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible." See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 3. Whether new and material evidence has been received to reopen a claim for service connection for manic depressive illness and bipolar disorder The Veteran's claim of service connection for manic depressive illness and bipolar disorder was last denied in a March 2012 rating decision. The Veteran filed a notice of disagreement but did not timely perfect an appeal after receiving an SOC. Therefore, the March 2012 rating decision became final. The Veteran requested that this service connection claim be reopened in April 2016. The Board finds that this claim should be reopened. During the pendency of this appeal, new evidence was submitted, including a June 2020 medical opinion from a private clinician. The private medical opinion addresses the question of a nexus between the Veteran's acquired psychiatric disorder and active service, including aggravation by service-connected conditions. This evidence is new in that it was not of record at the time of the last final decision. The evidence is relevant in that it addresses a previously deficient criterion of service connection. As such, new and material evidence has been received, and this claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include manic depressive illness and bipolar disorder, is remanded. As noted above, the Veteran submitted a private medical opinion, dated in June 2020, in which the private clinician stated that the Veteran's mental health disorders more likely than not began while he was in service. Additionally, the private clinician opined that the Veteran's depressive and anxious disorders are more likely than not aggravated by his service-connected conditions. Although the private opinion suggests a relationship between the Veteran's currently diagnosed psychiatric conditions and service or service-connected disabilities, the information of record is currently insufficient to decide the claim. Thus, remand for a VA examination and opinion is required. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a headache condition is remanded. The Veteran is also seeking service connection for a headache condition. In September 2020, he submitted a private medical opinion relating his headache condition to his military service. Specifically, the private medical opinion concluded that the Veteran's headaches were caused by his tinnitus and by stress caused by depressive disorder. The Veteran has not been provided with a VA examination to address the nature and etiology of his headache condition, to include whether it is due to his already service-connected tinnitus. An examination and opinion should be obtained on remand. McLendon, 20 Vet. App. at 81. Moreover, because a decision on the issue of service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for a headache condition, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his acquired psychiatric disorder. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) For each diagnosed acquired psychiatric disorder, is the condition at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to service? Please explain why or why not, specifically considering the June 2020 findings of the private clinician. (b) For each diagnosed acquired psychiatric disorder, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the condition is 1) proximately due to or the result of, or 2) aggravated by his service-connected disabilities? Please explain why or why not, specifically considering the June 2020 findings of the private clinician. 2. Schedule the Veteran for a VA examination for his headache condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's headache condition at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to service? Please explain why or why not, specifically considering the September 2020 findings of the private clinician. (b) Is the Veteran's headache condition at least as likely (likelihood is at least approximately balanced or nearly equal, if not higher) as not 1) proximately due to or the result of, or 2) aggravated by his service-connected tinnitus and/or psychiatric disorder? Please explain why or why not, specifically considering the September 2020 findings of the private clinician. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.