Citation Nr: 1618931 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 14- 24 620A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to an increased rating in excess of 10 percent for right hip degenerative joint disease. 3. Entitlement to an increased rating in excess of 10 percent for left hip degenerative joint disease. 4. Entitlement to an increased rating in excess of 20 percent for lumbar spine spondylolisthesis. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to December 2003. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction resides with the Atlanta RO. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. In a November 2015 rating decision, the RO denied service connection for sleep apnea. In an April 2016 Notice of Disagreement (NOD), the Veteran expressed disagreement with the denial listed above. The Agency of Original Jurisdiction (AOJ) acknowledged receipt of the NOD by way of an April 2016 letter and informed the Veteran that he could select to have a Decision Review Officer review the case. The Veteran was also informed that additional development might take place and if the appeal could not be granted, the AOJ would issue a statement of the case. Similarly, in an April 2012 rating decision, the RO granted service connection for adjustment disorder and assigned a 30 percent evaluation. Thereafter, in December 2012, the Veteran filed a notice of disagreement with the RO's findings. In a February 2013 letter, the RO notified the Veteran that they had accepted his notice of disagreement. As the AOJ has acknowledged receipt of the NODs and additional action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As such, a remand for these issues is not warranted at this time. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran has raised the issue of unemployability as a result of his service-connected disabilities. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The issues of (1) an increased rating in excess of 10 percent for right hip degenerative joint disease; (2) an increased rating in excess of 10 percent for left hip degenerative joint disease (3) an increased rating in excess of 20 percent for lumbar spine spondylolisthesis; and (4) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was treated for a fungal skin infection in service in September 2003. 2. The Veteran has a current skin disability, diagnosed as tinea versicolor and seborrheic dermatitis. 3. The evidence is in equipoise as to whether the Veteran's skin disorder (tinea versicolor) was incurred in service. CONCLUSION OF LAW The criteria for service connection for a skin disorder, diagnosed as tinea versicolor, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The claim of service connection for a skin disorder has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of tinea versicolor is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for a Skin Disorder The Veteran essentially contends that his current skin disorder was incurred in service and has persisted, intermittently, since service separation. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's skin disorder was incurred in service. Service treatment records reflect that the Veteran was seen in September 2003 for a rash on his back which had been present for 5 weeks. The Veteran reported that he had recently seen more patches of the rash on his hands and shoulders. A physical examination indicated multiple hyperpigmented papular lesions on the Veteran's back and shoulder. The physician indicated that the legions had been covered in calamine lotion and it was therefore undeterminable whether scaling was present. The Veteran was diagnosed with "tinea corporis v. atypical P.R." The Veteran was treated with an antifungal cream. The remaining service treatment records are negative for any further treatment or diagnosis of a skin disorder. Post-service VA treatment records include a December 2007 treatment note where the Veteran was seen for complaints of an itchy rash on the right shoulder and his back, which now had spread to his face. The Veteran reported having the same rash while in service. A diagnosis of tinea versicolor was provided. In an April 2010 VA treatment record, the Veteran was noted to have hypopigmented, scaly lesions on his face, anterior chest wall, upper back, and neck. A diagnosis of tinea versicolor was continued. VA treatment records also show that the Veteran had been prescribed Ketoconazole for fungal skin infections. See May 2011 VA medication list. Post-service VA treatment records include an April 2012 dermatology consult note. During the evaluation, the Veteran stated that, in 2003, he broke out in a rash on his face and body. The Veteran reported that it had resolved, but had recently found a new spot on his chest and his left shoulder. The Veteran's primary care physician was noted to have performed a biopsy of both lesions, which were initially read as an atypical lymphocytic infiltrate, but later read as interface dermatitis. The VA physician indicated that the etiology of the Veteran's skin disorder was unclear. It was further noted that the Veteran's skin disorder looked like a scar and post-inflammatory hyperpigmentation, which was noted to be "likely unrelated to his rash that he had in 2003." The description of the scaly patches in the Veteran's beard was noted to be similar to seborrheic dermatitis. The Veteran was afforded a fee-based examination in July 2009 and was diagnosed with seborrhea. An opinion as to the etiology of the skin disorder was not provided. In a following July 2009 addendum opinion, the examiner indicated that the Veteran's tinea corporis, diagnosed in service in September 2003, was a fungal infection unrelated to seborrheic dermatitis (seborrhea) diagnosed during the July 2009 examination. Therefore, the examiner concluded that the Veteran's current skin disorder (seborrhea) was less likely than not the same condition that was treated in service. The Board finds that the July 2009 addendum opinion is of limited probative value. Specifically, the examiner provided a negative nexus opinion based, in large part, on the fact that the Veteran had a fungal skin infection in service and currently had seborrheic dermatitis (a non-fungal skin infection). However, post-service VA treatment records document continued diagnoses and treatment for tinea versicolor (i.e., a fungal infection of the skin). Although the examiner indicated that he had reviewed VA treatment records dated in December 2007, the examiner did not note a prior diagnosis of tinea versicolor and did not opine as to whether the Veteran's diagnosed tinea versicolor was incurred in service or otherwise related to service. The Board notes that tinea versicolor is defined as a common fungal infection of the skin resulting in small, discolored patches. See Dorland's Illustrated Medical Dictionary 505 (31st ed. 2007) The Board finds that, although not specifically diagnosed with tinea versicolor in service, the Veteran was diagnosed and treated for a fungal skin infection. The Veteran has a current diagnosis of tinea versicolor which is a fungal skin infection. The Board finds that the Veteran is competent to report skin symptoms, including the location and appearance of a skin rash. Further, the Veteran has consistently reported that the appearance of his skin rashes were the same as the rashes sustained in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's skin disorder, diagnosed currently as tinea versicolor, was incurred in service. As such, service connection for a skin disorder is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder, diagnosed as tinea versicolor, is granted. REMAND Lumbar Spine Disability The Veteran was last afforded a VA spine examination in September 2011. During the evaluation, the Veteran reported constant low back pain which worsened with walking, washing dishes, and vacuuming. Upon physical examination, range of motion testing showed flexion limited to 70 degrees, with pain beginning at 0 degrees. The examiner did not perform repetitive use testing. The examiner noted that the Veteran complained of radiation of pain to his right lower extremity; however, a diagnosis of radiculopathy was not provided. Further, although the examiner indicated that the Veteran had flare-ups, the VA examiner did not address any additional limitation of motion during flare-ups, a necessary part of the examination to be addressed by the examiner. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). For these reasons, the Board finds the September 2011 VA examination to be inadequate regarding the severity of the Veteran's lumbar spine disorder. Moreover, VA treatment records dated in July 2012 reveal a diagnosis of lumbar radiculopathy. An MRI of the lumbar spine was also conducted in July 2012, which noted "severe" canal narrowing, "severe" bilateral foraminal narrowing, "severe" facet arthropathy, and "severe" canal narrowing. The Veteran was also noted to have posterior disc protrusion. Numerous VA treatment records reflect consultations with VA neurosurgeons regarding consideration of surgical treatment for the Veteran's spine disability. See e.g., September 2012 and October 2012 VA treatment records. This evidence suggests to the Board that the Veteran's lumbar spine disability may have increased in severity since the most recent September 2011 VA examination. Moreover, additional medical evidence has been associated with the claims file by the RO since the most recent April 2014 statement of the case (SOC). See e.g., VA treatment records from July 2014 to April 2016. Neither the Veteran nor his representative waived review of this additional evidence. Accordingly, a supplemental statement of the case must be issued which takes into consideration the evidence associated with the claims file since the April 2014 SOC. See 38 C.F.R. §§ 19.31, 19.37 (2015). Bilateral Hip Disabilities The Veteran was afforded a VA examination in September 2011, more than four years ago. During the evaluation, the Veteran reported that he had constant bilateral hip pain that was sharp. Movement of the hips was noted to worsen the pain as did sitting on hard surfaces. Range of motion testing showed flexion of the hips to 90 degrees with pain beginning at 0 degrees. Extension was limited to 5 degrees with pain beginning at 0 degrees. The Veteran was able to cross his right thigh over his left thigh and vice versa, with pain. The examiner was unable to perform repetitive use testing of the hips due to pain. The Board finds that another examination is necessary as the September 2011 VA examination did not indicate range of motion testing regarding bilateral hip abduction or bilateral hip rotation as contemplated under Diagnostic Code 5253. As such, the Board finds that a new VA examination is warranted in order to assist in determining the current severity of the Veteran's bilateral hip disabilities. Moreover, additional medical evidence has been associated with the claims file by the RO since the most recent April 2014 statement of the case (SOC). See e.g., VA treatment records from July 2014 to April 2016. Neither the Veteran nor his representative waived review of this additional evidence. Accordingly, a supplemental statement of the case must be issued which takes into consideration the evidence associated with the claims file since the April 2014 SOC. See 38 C.F.R. §§ 19.31, 19.37 (2015). TDIU The Board's remand regarding the claims for increased ratings for the Veteran's spine and psychiatric disabilities could potentially have an impact regarding the TDIU issue; therefore, the issue of a TDIU is inextricably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request all VA medical records not already of record and should associate them with the electronic claims file. 2. Schedule the Veteran for a VA spine examination to determine the severity of his service-connected thoracolumbar spine disability, including any associated neurological impairment. The entire record should be made available to the examiner. The examiner should express an opinion concerning whether there would be additional limits on functional ability of the lumbar spine on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss of the lumbar spine. If the VA examiner is unable to report the degree of additional range of motion loss on repeated use or during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. 3. Schedule the Veteran for a VA hip examination to determine the severity of his service-connected bilateral hip disabilities. The entire record should be made available to the examiner. The examiner should perform range of motion testing and report the results of that testing. The examiner should also address functional limitations associated with the disorder including as associated with functional loss due to pain on undertaking motion, fatigue, weakness, and/or incoordination. 4. After completion of the foregoing and all other necessary development, the AOJ should re-adjudicate all issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs