Citation Nr: 1623407 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 07-16 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a bone condition of the bilateral upper extremities (BUEs). 2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. 3. Entitlement to service connection for diabetes mellitus, type II (DM). 4. Entitlement to service connection for osteoporosis of the bilateral lower extremities (BLEs). 5. Entitlement to a disability rating in excess of 10 percent for eczematoid dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty in the U.S. Air Force from May 1955 to September 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran requested a hearing before the Board in September 2009. However, in a subsequent communication received in February 2015, he withdrew his request for a hearing. 38 C.F.R. § 20.704(e) (2015). The Veteran's April 2006 notice of disagreement (NOD) indicated that he disagreed with the May 2005 rating decision, except for the issues of hearing loss and arteriosclerosis of the BLEs. Consequently, this appears to be disagreeing with the issues of service connection for osteoporosis of the BLEs and tinnitus. No statement of the case (SOC) has been issued for these claims. With regard to the claim of entitlement to service connection for osteoporosis of the BLEs, because the filing of an NOD initiates appellate review, the osteoporosis claim must be remanded for the preparation of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). As service connection was granted for tinnitus in a January 2008 rating decision, there is no need to remand that claim. The issues of service connection for DM and osteoporosis of the BLEs are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. Prior to the promulgation of a final decision by the Board, the Veteran indicated that he wished to withdraw his appeal of the denial of service connection for a bone condition of the BUEs. 2. The Veteran's currently diagnosed acquired psychiatric disorder is likely the result of his active service. 3. For the entire period on appeal, the Veteran's service-connected eczematoid dermatitis has been manifested by itching blisters on the hands, affecting less than 20 percent of the entire body and requiring only topical therapy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of service connection for a bone condition of the BUEs by the Veteran have been met and the appeal is withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. Bipolar disorder was incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303 (2015). 3. The criteria for a disability rating in excess of 10 percent for service-connected eczematoid dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2015). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Withdrawn Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2015). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2015). The Veteran perfected his appeal of the May 2005 rating decision denying service connection for a bone condition of the BUEs. In April 2012, he indicated in writing that he did not wish to continue with this appeal. His withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3) (2015). As there remain no allegations of errors of fact or law for appellate consideration on this issue, the Board does not have jurisdiction to review the claim for service connection for a bone condition of the BUEs. It is dismissed. II. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2015). With regard to the psychiatric claim, this claim is being granted herein. Any error related to the VCAA is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the skin claim, the Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Significantly, the Veteran was provided all required notice elements, including what evidence VA would seek to obtain and what evidence the Veteran was expected to provide, what information was required to establish service connection or an increased rating, and information regarding disability ratings and effective dates in February 2005 and July 2006 letters. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006) Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's duty to assist has also been satisfied. Service treatment records, VA examination reports, and VA treatment records are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced other available and relevant records that he wanted VA to obtain or that he felt were relevant to his claim. The Veteran has undergone several VA examinations for his disabilities on appeal. Most recently, he was examined for his skin disability in February 2011. The examinations involved a thorough examination of the Veteran, consideration of his lay statements/history, and a conclusion that was supported by sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is also no evidence (lay or medical) of any material worsening of the Veteran's skin disability since the February 2011 examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). Significantly, newer VA treatment records show similar symptomatology to that demonstrated at the time of the most recent VA examination. A new VA examination is not necessary at this time. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Merits of the Claims A. Service Connection The Veteran was afforded a VA psychiatric examination and opinion in February 2011. The examiner diagnosed the Veteran with bipolar disorder and noted the complaints of difficulty sleeping, restlessness, and nightmares, associated with anxiety on his September 1958 separation examination report. The examiner concluded that he was unable to determine whether the Veteran's current psychiatric disability began in service without resorting to mere speculation. However, he did note that the mood changes noted by the Veteran at separation were hallmark symptoms of bipolar disorder. The Board takes this latter statement as supportive of the Veteran's claim. The Veteran was afforded a second VA examination in August 2014, but that examination did not include a nexus opinion. In light of the Veteran's psychiatric complaints at discharge, his current bipolar disorder diagnosis, and the February 2011 VA examiner's opinion that some of these complaints were hallmark symptoms of bipolar disorder, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current acquired psychiatric disorder, to include bipolar disorder, is related to his military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for an acquired psychiatric disorder is granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2015). 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran has been assigned a 10 percent evaluation under Diagnostic Code 7806 for his service-connected eczematoid dermatitis. Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated either under Diagnostic Code 7806 or as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 were recently amended, effective October 23, 2008. As the Veteran's claim was received in September 2006, consideration of the appropriateness of an evaluation under Diagnostic Codes 7800-7805 will include consideration of only the pre-2008 regulations. Under Diagnostic Code 7806, a 10 percent evaluation is assigned for at least 5 percent but less than 20 percent of the entire body or 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 30 percent evaluation is assigned for 20 to 40 percent of the entire body or 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 60 percent evaluation is assigned for more than 40 percent of the entire body or 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2015). The U.S. Court of Appeals for Veterans Claims has held that the use of topical corticosteroids constitutes systemic therapy under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2015). Johnson v. McDonald, 27 Vet.App. 497, 504 (2016). The Veteran was first examined for his current skin claim in February 2005. At that time, he reported flares of itchy clear blisters on his hands for 20 years after service, but denied any significant problems with his hands since the 1970s. The examiner observed essentially normal hands with eight to ten 2mm or less stucco keratoses on the back of each hand. He also noted that the Veteran's hands were quite dry, but did not find any other skin problems. He concluded that the Veteran had a "touch of so-called dry eczema or xerosis" with no evidence of other significant skin disorder. He was next examined in April 2010. At that time, he complained of constant itching bumps on or below his skin, some with scaling. He reported using topical steroids without help in the past and not currently using any treatment. The examiner observed that his skin condition affected greater than 5 percent, but less than 20 percent of exposed areas and the total body. He diagnosed the Veteran with seborrheic keratosis of the forearms, back, ankles, and dorsal feet, actinic keratosis on the forearms, stasis dermatitis on the right lower leg, and xerosis of the entire body. He noted, however, that there was not dermatitis present at the time of examination. He was most recently examined in February 2011. At that time, he reported experiencing intermittent pruritic blisters between his fingers. He indicated that he used over-the-counter hydrocortisone cream to treat his skin condition. He denied any skin disease treatment in the preceding 12 months and noted that his hands stay clear if he stays away from chemicals. The examiner observed that none of the exposed areas and less than 5 percent of the Veteran's total body area was affected, as there was no active rash at the time of examination. She diagnosed the Veteran with dermatitis, not currently active. The medical evidence also includes several VA treatment records that are consistent with the VA examinations. Significantly, although the Veteran has been treated for other dermatological concerns, including skin cancer, his service-connected eczematoid dermatitis has been minor or non-existent. In addition to the medical evidence, the Veteran has provided lay evidence, including written statements that were consistent with the examiners' findings. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 10 percent for his service-connected eczematoid dermatitis at any time throughout the appeals period. All three examinations showed that less than 20 percent of the Veteran's total body area was affected. In fact, two of the three examinations found less than 5 percent of the total body area was affected. Additionally, there is no evidence that the Veteran used corticosteroids for a period of 6 weeks or more during any 12 month period on appeal. The Veteran reported using topical corticosteroids in the past at his 2010 examination, and stated that he had used over the counter hydrocortisone cream in his 2011 examination, but not in the past 12 months. Without evidence of either a 20 to 40 percent of the Veteran's total body or the use of systemic therapy for a period of 6 weeks or more during any 12 month period, an evaluation in excess of 10 percent cannot be assigned. The Board has also reviewed the remaining diagnostic codes and finds that none are applicable. As the Veteran's skin disability affects his hands, an evaluation based on disfigurement of the head, face, or neck under either the pre-2008 version of Diagnostic Code 7800 is not appropriate. Similarly, his skin condition is not akin to an unstable, painful, or deep scar and does not cause limitation of motion. There is also no evidence of any other symptoms to warrant an increased rating under any other skin-related diagnostic code. As such, an increased rating cannot be assigned under any alternative pre- or post-2008 skin diagnostic codes. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, 7807-7833 (2015). The Board also notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, supra. Accordingly, the Board finds that the claims of entitlement to a disability rating in excess of 10 percent for eczematoid dermatitis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER The appeal of the denied claim for service connection for a bone condition of the BUEs is dismissed. Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to a disability rating in excess of 10 percent for eczematoid dermatitis is denied. REMAND As noted above, there is no evidence in the claims file to indicate that the AOJ issued an SOC in response to the Veteran's April 2006 NOD with the May 2005 rating decision denying service connection for osteoporosis of the BLEs. Therefore, the issue of entitlement to service connection for osteoporosis of the BLEs must be remanded to the AOJ to issue an SOC. See Manlincon, supra. With regard to the DM claim, the Board's review of the VA treatment records indicates that the Veteran's DM is poorly controlled due to his diet. He has expressed to his healthcare providers that his eating behaviors are associated with his depression and impulsivity. See, e.g. VA treatment records, July 1999, October 2000. Although an opinion has been obtained on whether the Veteran's DM is related to his service-connected skin disability, no opinion has been obtained on whether his DM was caused or aggravated by his now service-connected psychiatric disability. This claim must be remanded for such an opinion. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with a statement of the case regarding his appeal of the denial of service connection for osteoporosis of the BLEs. He should be advised of the time period in which to perfect an appeal. If the Veteran perfects an appeal, this claim should then be returned to the Board for further appellate consideration. 2. The Veteran's claims file should be provided to the original August 2014 examiner, if possible, for an addendum opinion for the Veteran's DM claim. If the August 2014 examiner is not available, the claims file should be provided to another appropriate examiner. The claims folder must be made available to the examiner for review in connection with the opinion. The opinion must reflect that such a review was conducted. An examination is not required unless it is deemed necessary by the examiner. With regard to the Veteran's DM, the examiner should state whether it whether it at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed DM was caused or aggravated (chronically worsened) by any of his service-connected disabilities, including his now service-connected psychiatric disorder. In answering this question, the examiner must specifically address the treatment records noting that the Veteran attributed his overeating to his bipolar disorder-related impulsivity. The examiner should also address the Veteran's report to VA providers that he was reluctant to test his blood sugar due to his service-condition hand skin condition. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, the Veteran's claim of entitlement to service connection for DM should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the claim should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs