Citation Nr: 1627738 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 10-06 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for Morton's Neuroma of the left foot, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for sebaceous cyst on the left side of the neck, currently evaluated as noncompensable. 3. Entitlement to an increased rating for dermatological infection, currently evaluated as noncompensable. 4. Entitlement to an increased rating for right elbow tendonitis, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for left elbow tendonitis, currently evaluated as 10 percent disabling. 6. Entitlement to an increased rating for prostrate nodule, currently evaluated as 20 percent disabling. 7. Entitlement to an increased rating for left varicocele, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from June 1978 to September 1998. These matters come before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia. During the pendency of the appeal, the Roanoke, Virginia RO assigned a 20 percent rating for the Veteran's prostate nodule, effective from November 2008. In April 2016, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to increased ratings for right elbow tendonitis, left elbow tendonitis, prostrate nodule, and a left varicocele, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). In a July 2009 notice of disagreement for his dermatological infection (follicular infections) rating, the Veteran appears to raise the issue of entitlement to service connection for basal cell carcinoma, actinic keratosis, and seborrheic dermatitis. As the Board does not have jurisdiction over these matters, they, they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. See 38 C.F.R. § 19.9(b). FINDINGS OF FACT 1. In April 2016, prior to the promulgation of a decision in the appeal, the appellant notified the Board that he wished to withdraw his appeal on the issue of entitlement to an increased rating for Morton's Neuroma of the left foot, currently evaluated as 10 percent disabling. 2. In April 2016, prior to the promulgation of a decision in the appeal, the appellant notified the Board that he wished to withdraw his appeal on the issue of entitlement to an increased rating for sebaceous cyst on the left side of the neck, currently evaluated as noncompensable. 3. In giving the benefit of the doubt to the Veteran, the Board finds that his bilateral inner thigh area is at least five percent, but less than 20 percent, of his entire body or at least five percent, but less than 20 percent, of his exposed area. 4. During the pendency of the appeal from January 4, 2010, and not earlier, the Veteran's service-connected disability of dermatological infections (i.e. follicular infections) has been manifested by symptoms of bumps covering an area which is less than 20 percent of the entire body, and less than 20 percent of exposed areas. 5. The Veteran's service-connected disability has not required the use of intermittent systemic therapy or other immunosuppressive drugs prior to January 4, 2010, or for a total duration of six weeks or more since that date. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant for the issue of entitlement to an increased rating for Morton's Neuroma of the left foot, currently evaluated as 10 percent disabling have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of an appeal by the appellant for the issue of entitlement to an increased rating for sebaceous cyst on the left side of the neck, currently evaluated as noncompensable, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for a rating of 10 percent and no higher, from January 4, 2010 and no earlier, for dermatological infection (folliculitis) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.118, Diagnostic Code 7806 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues (Morton's Neuroma & Sebaceous cyst on the left side of the neck) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.20. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 At the April 2016 Central Office Board hearing, the Veteran indicated that it was his intent to withdraw the appeals for entitlement to increased ratings for Morton's neuroma of the left foot and sebaceous cyst on the left side of the neck. (See Board hearing transcript pages 23, 24, and 37.) Thus, there remain no allegations of errors of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to review them. Adjudicated Issue With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service connected for dermatological infections evaluated as noncompensable under DC 7806. Historically, in September 1998, the Veteran filed a claim for "dermatological infections". In granting service connection, the RO noted that the Veteran's "service medical records show that the veteran had a history of treatment for follicular infection." Thus, the Board finds that the Veteran's service-connected disability of "dermatological infections" is used to denote a disability of follicular infections (i.e. an infection of a hair follicle). In November 2008, the Veteran filed a claim for an increased rating. A compensable rating would be warranted if the evidence reflected that the Veteran's disability affected at least 5 percent of the entire body, or at least 5 percent of the exposed areas affected, or if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required in the last 12 months. As is discussed below, the evidence is against such a finding The Veteran underwent a VA/QTC examination in 2009. The report reflects upon examination, the Veteran did not have acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. He had a left cheek irritation or skin lesion which covered .04 percent of his exposed area and .001 percent of his whole body. The skin lesion was not associated with systemic disease. The examiner noted that the Veteran reported that he has had actinic keratosis, seborrheic keratosis, and papillomatous. His treatment has included Desonide (a topical corticosteroid), and Aldara (a topical cream). The Board finds that the Veteran's keratosis is not a dermatological infection for which he is in receipt of service-connection. A keratosis is a horny growth or wart or callus; the most common types are actinic (caused by excessive exposure to the sun) and seborrheic (a benign noninvasive tumor composed of basaloid cells). DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007), Thus, despite the various skin conditions which the Veteran may have, he is only rated for his follicular infections for which he is in receipt of service-connection. The Veteran testified at the 2016 Board hearing that he has been treated with ketoconazole shampoo and Desonide cream to treat problems with his ears, that he has been prescribed chlorhexidine gluconate because of red spots on his legs, and that he has been prescribed benzoyl peroxide topical lotion for folliculitis, and ketoconazole or Nizoral cream for a fungus rash in his groin. A December 2007 Walter Reed record reflects that the Veteran had skin neoplasm which was excised, seborrheic dermatitis, and seborrheic keratosis. A November 2008 Walter Reed record reflects that the Veteran had seborrheic keratosis, actinic keratosis, seborrheic keratosis, and a scar on the eye. A January 4, 2010 Walter Reed record reflects that the Veteran uses Desonide for ear itchiness. The Veteran reported no skin related pain but that "he gets bumps on his thighs from time to time." He was diagnosed with folliculitis with "scattered erythematous pustules on thighs [consistent with] staph carriage/folliculitis but limited to this are. swims alot [sic]. Suggested use moisturized and a few times a week shower with chlorhexidine gluconate." A January 2011 Walter Reed record reflects that the Veteran had seborrheic keratosis. A January 2012 Walter Reed record reflects that the Veteran had "thigh folliculitis" and that he uses Desonide on occasion for scaling inside his ear. Upon examination it was noted that the Veteran had left ear actinic keratoses, seborrheic dermatitis, and "rare folliculocentric papule bilateral inner thighs". It was diagnosed as mild and the Veteran was prescribed benzoyl peroxide to use as a wash in the shower. January 2013 Walter Reed records reflect actinic keratosis and seborrheic keratosis. He was also diagnosed with seborrheic dermatitis of the bilateral concha (bowl of the ear), and prescribed Nizoral and Desonide for flare ups. Seborrheic dermatitis is a chronic inflammatory disease of the skin of unknown etiology. January 2014 Walter Reed records reflect that the Veteran had a nail fungus. It also notes that upon a full body skin examination (FBSE) (excluding buttocks and genitalia) that he had actinic keratosis on the forehead, temples, cheeks, and nose, and seborrheic keratosis on the face. The evidence does not support a finding that the Veteran's nail fungus is a form of his service-connected follicular disability. A February 2016 Walter Reed record reflects that the Veteran was seen for a full body examination. The only notable findings were actinic keratosis of the right nose, and seborrhea capitis on the scalp, for which he was treated with clobetasol and ketoconazole. April 2016 correspondence from Dr. J. Nekoba reflects that the Veteran has been treated for tinea cruris (March 2016) and prescribed ketoconazole (Nizoral). The Board notes that tinea cruris is a fungal infection of the groin and adjacent skin. A February 2016 Walter Reed record reflects that a full body skin examination was performed." Upon examination, the Veteran had a solitary erythematous macule on the right nasal sidewall, a well demarcated 6 cm thin plaque on the frontal scalp with micaceous scale for which he was prescribed ketoconazole and which was diagnosed as seborrhea capitis. The Board has considered that the Veteran's service-connected skin disability has been limited to the inner thighs and that the first clinical evidence during the rating period on appeal is from January 4, 2010 In this regard, no follicular symptoms were noted on earlier examinations. Moreover, there is no competent credible evidence of record that he had at least five percent of his body or exposed area affected with a dermatological infection prior to that time. While the Veteran is competent to state that he has bumps or a rash, he has not provided sufficient evidence upon which to make a finding that he had an infection prior to January 4, 2010 which covered at least five percent of his body or exposed area despite the clinical findings otherwise. Moreover he has not been shown to be competent to differentiate between his several different disabilities of the skin. As noted above, clinical records prior to January 2010 are negative for folliculitis despite clinical examinations of the skin. (See December 2007 and November 2008 records.) The earliest clinical evidence of such is January 2010 and notes that the bumps are only occasional (i.e. time to time) and that treatment (moisturizer and showers with chlorhexidine gluconate) would be begun. The Board also notes that the evidence is against a finding that the Veteran's disability has required systemic therapy or immunosuppressive drugs prior to January 4, 2010, or for at least six weeks in duration from that time. In sum, the Veteran is not in receipt of service connection for actinic keratitis, seborrheic dermatitis, or fungal infections of the groin or nails. Thus, any treatment for such is not relevant to the rating issue on appeal and the size of the area affected by such is also not relevant. In giving the benefit of the doubt to the Veteran, the Board finds that an increased rating of 10 percent and no higher, from January 4, 2010 and no earlier, is warranted based on the folliculitis of the inner thighs, which makes up less than 20 percent of the exposed area or entire body. 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102,. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Other considerations The rating criteria allow for skin disabilities to be rated based on size of affected area, and the need, frequency, and type of medication used to treat the disability. The Board has reviewed the evidence of record and finds that it does not show such an exceptional disability picture as to be outside the schedular rating criteria of DC 7806. DC 7806 , which is the diagnostic code for dermatitis or eczema inherently encompasses symptoms such as pain, papules, itching, and irritation. Thus, the first prong of Thun v. Peake, 22 Vet. App. 111 (2008) and 38 C.F.R. § 3.321(b), an exceptional disability picture, has not been met. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced. The Veteran is in receipt of service connection for several disabilities. All of the pertinent symptoms and manifestations have been evaluated by the appropriate diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not a case involving an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim for an increased rating for his skin disability does not support a finding that a claim for a TDIU has been reasonably raised by the record. ORDER The appeal as to the issue of entitlement to an increased rating for Morton's Neuroma of the left foot, currently evaluated as 10 percent disabling, is dismissed. The appeal as to an increased rating for sebaceous cyst on the left side of the neck, currently evaluated as noncompensable is dismissed. A rating of 10 percent, and no higher, from January 4, 2010, and no earlier, for dermatological infections is granted, subject to the regulations governing payment of monetary awards. REMAND Increased rating for right elbow tendonitis Increased rating for left elbow tendonitis The most recent VA/QTC examination for tendonitis is from January 2009. The Veteran testified at the April 2016 Board hearing that he has flare-ups that last three to six months. He also testified that his range of motion has remained the same as in 2009 but that his pain has increased. He testified that during a flare-up, he has difficulty trying to carry things, and that lifting things such as a 30 pound bag of cat litter can be very painful, or a 3 out of 5 during a flare-up (See Board hearing transcript, page 17.) The Veteran also submitted a statement in May 2016 that he has sharp pains in both biceps that interfere with sleep, use of his arms, exercise, and household chores. The Board finds, based on the Veteran's statements, he should be scheduled for another examination to determine the current severity of his disabilities. The Veteran testified that he gets physical therapy at the Jackson VA clinic and/or from the VA center in Washington from Dr. Ariswald, and/or a Dr. Nakoba (his primary care physician). In April 2016, the Veteran submitted clinical records for physical therapy; however the records were from 1998. Thus, the Board is unsure if the Veteran received therapy during the rating period on appeal for which the Board does not have records. Increased rating for prostate nodule The most recent VA/QTC examination for prostate nodule is from January 2009. It reflects that the Veteran did not experience any functional impairment from his condition. It was noted that the Veteran's prostate nodule was asymptomatic. The Veteran testified that he has had a spike in his PSA levels, a biopsy, and a reduced in PSA levels. His prostate nodule is rated based on urinary symptoms. He testified that he urinates approximately once an hour while awake, and then awakens once at night to urinate, an increase in frequency since 2009. The Board finds that another examination, to include an opinion as to whether the Veteran's urinary frequency is due to his prostate nodule is warranted. The Veteran has stated that he has been seen by a urologist, Dr. Tawil, at the Alexandria, VA (Northern VA Urology) office. Increased Left Varicocele A varicocele is a condition manifested by abnormal dilation of the veins of the spermatic cord, [which results] in impaired drainage of blood into the spermatic cord veins when the patient assumes the upright position. Nici v. Brown, 9 Vet. App. 494, 495 (1996) (citing Stedman's Medical Dictionary 1907 (26th ed. 1995)). The RO has evaluated the left varicocele as noncompensable under DC 7523. At the January 2009 VA examination, the Veteran reported that since June 1997, he had experienced 3-4 months of pain in the left testicle. However, he did not indicate what time period he was referencing. He reported that he does not experience any functional impairment. The Veteran declined a genital examination. The examiner found that there was no subjective or objective evidence of symptoms at the time of the examination. The Veteran testified at the Board hearing that he has some pain in the testicle and that he has been treated for low testosterone. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all providers from whom he has received treatment for bilateral elbow tendonitis, his prostate nodule, and his varicocele, from November 2008 to present, including Dr. Nakoba, Dr. Tawil, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records, to include VA records. 2. After completion of the foregoing, schedule the Veteran for a VA examination to determine the severity of his right and left tendonitis, prostate nodule, and a varicocele. Tendonitis: In addition to findings on range of motion, the examiner should note: a.) whether the Veteran is undergoing a flare-up of his tendonitis at the time of the examination; b.) a detailed account of the Veteran's reported symptoms during a flare-up (e.g. the Veteran testified at the Board hearing that while lifting an object during a flare-up, it is very painful which he described as a 3 out of 5) and; c.) functional limitations during a flare-up. Prostate nodule: the examiner should opine as to whether the Veteran currently has a prostate nodule and if so, whether his urinary frequency is as likely as not due to that prostate nodule. The examiner should also differentiate symptoms due to the Veteran's prostate nodule, if any, from those due to his varicocele, if any. Varicocele: the examiner should opine as to whether the Veteran currently has a varicocele and if so, whether he has any symptoms from such. The examiner should also differentiate symptoms due to the Veteran's prostate nodule, if any, from those due to his varicocele, if any. The examiner should opine as to whether the Veteran's low testosterone is a manifestation of a varicocele, and if so, whether the low testosterone causes any symptoms. 3. Following completion of the above, readjudicate the issues on appeal (right tendonitis, left tendonitis, prostate nodule, left varicocele). If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs