Citation Nr: 1751249 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-09 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). 2. Entitlement to a higher initial rating in excess of 30 percent for diverticulitis. 3. Entitlement to a higher initial rating in excess of 50 percent for sleep apnea with asthma, to include the question of whether separate ratings are warranted. 4. Entitlement to an initial compensable rating for residuals of basal cell carcinoma, rated as an excision scar on the neck. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty in the Air Force Reserves from October 1976 to January 1977, June 1982 to August 1992, October 2006 to May 2008, and July 2009 to October 2009, and served on additional periods of active duty for training (ADT) and inactive duty for training (IADT) with the Air Force Reserves. This matter comes on appeal before the Board of Veterans' Appeals (Board) from May 2012, September 2013, January 2015, and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (RO). The Veteran testified at a December 2014 Board videoconference hearing. The hearing transcript is of record. The Board remanded the appeal in June 2015, in pertinent part, to identify ADT and IADT dates, to obtain Reserves service records, to obtain a supplemental medical opinion. The Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand order in conducting the requested development, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issues of entitlement to a higher initial rating for diverticulitis and a higher initial rating for sleep apnea with asthma are addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran identified symptoms of depression and anxiety on a post-deployment examination and was later diagnosed with depressive disorder and anxiety, and VA examiners have related the onset of Veteran's psychiatric disorder to stressful incidents which occurred during the Veteran's Reserve service. 3. The Veteran has one excision scar on the neck that does not result in disfigurement of the head, face, or neck, is not painful or unstable, and does not result in limitation of motion or loss of function. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for depression and anxiety are met. 38 U.S.C.A. §§ 1101, 1131, 5107, 5121 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. The criteria for an initial compensable rating for residuals of basal cell carcinoma, rated as an excision scar on the neck, are not met. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.118, Diagnostic Code 7800, 7804, 7805 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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) (2016); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board is granting the full benefit with regard to the Veteran's claim for service connection for an acquired psychiatric disorder. The Board finds that the Veteran was provided adequate preadjudicatory notice addressing his increased rating claim. The Board finds that VA examinations of record addressed the relevant rating criteria and are sufficient for rating purposes. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection for an Acquired Psychiatric Disorder 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, 1131; 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). As a general matter, 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). Active military, naval, or air service includes any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of IADT during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101 (21) and (24) (West 2015); 38 C.F.R. § 3.6 (a) and (d) (2016). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101 (22) (West 2015); 38 C.F.R. § 3.6 (c)(1) and (3) (2016). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101 (24), 106, 1110 (West 2015). The Veteran contends that he has PTSD, depression, and anxiety due to his deployment in Iraq. He has submitted lay evidence identifying the onset of psychiatric symptoms after his return his deployment in Iraq in April 2008. The Veteran's wife and daughter submitted February 2012 laid statements identifying the presence of psychiatric symptoms since his 2008 deployment. The Veteran's daughter also related stressful incidents related to the Veteran's active duty service with the Reserves, to include his struggle with passing a required physical fitness test due to service-connected asthma, the threat of an involuntary discharge from the Reserves, and his being reprimanded when he sought to discuss these issues with his superiors. The Veteran does not have a confirmed diagnosis of PTSD but he has been diagnosed with depression and anxiety. See April 2012 and March 2013 VA examinations and VA treatment records. The Board will, therefore, address the question of whether depression and anxiety were incurred in service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Prior to 2008, service treatment records do not identify any psychiatric treatment or complaints. An October 2008 Post-deployment Health Reassessment shows that upon the Veteran's return from a six-month deployment to Qatar and Iraq, he identified having emotional problems, such as feeling depressed or anxious, that made it "very difficult" to work, take care of things at home, and get along with other people. He first sought psychiatric treatment post-service in November 2011. VA treatment records show that the Veteran's wife accompanied him, and reported that he completely changed since going to Iraq. He was anxious, depressed, irritable, and was not sleeping well. He reported that he was suffering from shortness of breath, had not been able to pass physical fitness tests in the Reserve, and his commander was threatening to kick him out. After 18 years in the military, he was afraid of losing his retirement, and his Colonel had threatened him, telling him he needed to pass the next test in December. The Veteran was preliminarily diagnosed with depressive disorder, acute, versus PTSD, and had Axis IV stressors which included problems with not being able to pass military physical tests, being treated poorly by his commander, and being fearful of losing his retirement. A comprehensive psychological evaluation was completed in February 2012, in which again, the Veteran identified psychiatric problems beginning after his deployment in Iraq. Psychological testing was conducted. The VA psychiatrist found that the Veteran did not meet the DSM-IV criteria for military-related PTSD, but endorsed many symptoms consistent with depression and anxiety, with some improvement of symptoms with his diagnosis and treatment for sleep apnea. His diagnosis, was to rule out anxiety and depressive disorder due to sleep apnea. An Axis IV stressor included a possible Medical Board review. An April 2012 VA examiner found that the Veteran had subclinical PTSD symptoms which he claimed were related to his experiences in Iraq. The Veteran's stressors and symptoms, however, were found to fall short of what was required for a DSM-IV diagnosis of PTSD and no psychiatric diagnosis was identified at that time. A June 2012 letter from a VA Advanced Practice Nurse Clinician, associated with Reserves personnel records, show that the Veteran was being treated for acute stress disorder secondary to the threat of being medically discharged from the military. VA treatment records dated from 2012 to present show that the Veteran continued to be treated with medication for depression and anxiety. A March 2013 VA examiner found that the Veteran met the DSM-IV criteria for depressive disorder, not otherwise specified, and anxiety disorder, not otherwise specified, based on examination and psychometric testing results. The examiner opined that the Veteran's disabilities were less likely than not caused by or a result of military experiences (during his period of deployment), but indicated, instead, that the Veteran demonstrated emotional reactivity beginning in 2011 related to significant stressors following discharge, including conflict with his commander in the Reserve, pressure to pass PT tests, the prospect of the Medical Board Review process, and his retirement from the Reserve. Service personnel records confirm that the Veteran was put on profile limiting his physical activity for ADT and show that he sought an appointment with his superiors to discuss his physical fitness test and the possible impact on his retirement by requesting a meeting by email. He was later demoted for a failure to use the proper chain of command in requesting these meetings and was eventually medically disqualified from service in December 2011. These incidents occurred on the same timeline in which he initially sought treatment for depression and anxiety symptoms. A February 2016 VA examiner indicated, in a supplemental medical opinion, that the Veteran's current psychiatric presentation, as shown in VA treatment records, is commensurate to that shown during the March 2013 VA examination, but also noted a rule out diagnosis of narcissistic personality disorder. The examiner stated that the conclusions reached during the March 2013 examination continued to be accurate. The examiner noted that individuals with narcissistic personality disorder or narcissistic personality traits exhibit vulnerability in self-esteem, and as such, it made these individuals extremely sensitive to "injury" from criticism or defeat. The examiner stated that the Veteran's personality style likely accounted of his depressive and anxiety symptoms. The examiner found that the diagnosed psychiatric disorder was less likely than not related to or aggravated by asthma. The Board finds that the evidence is at least in equipoise on the question of whether depression and anxiety were incurred during active duty service or during a period of ADT. The record shows that the Veteran reported psychiatric symptoms at the time of a post-deployment evaluation significant enough to interfere with work, home-life, and social interactions. The Veteran and lay witnesses have reported the onset of his symptoms at the time of his deployment and the Board finds that the statements are credible and consistent with the self-report in the post-deployment examination. The Veteran was diagnosed with depression and anxiety a few years later based on the same symptom presentation. Additionally, while VA examiners fail to relate the Veteran's depression and anxiety to active duty service, VA treating mental health providers and a March 2013 VA examiner have related the onset of his psychiatric disorder to incidents occurring during ADT with the Reserves, including stressful incidents related to the failure to pass required physical fitness tests and conflicts with his superiors, ultimately leading up to Medical Board Proceedings and an involuntary retirement due to physical disability. Accordingly, the Board finds that the evidence is at least in equipoise on the question of whether currently diagnosed depression and anxiety are related to active duty service or a period of ADT. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for depression and anxiety have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). Initial Rating for Residuals of Basal Cell Carcinoma Scars are evaluated under criteria set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Current residuals of basal cell carcinoma have been identified as an excision scar located on the neck, which is currently rated as noncompensable under Diagnostic Code 7800, which pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Diagnostic Code 7804 contemplates scars that are unstable or painful. A 10 percent disability rating is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. A higher 20 percent rating is assigned with three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7805 provides that other scars (including linear scars), not otherwise rated under Diagnostic Codes 7800-7804, in addition to the other effects of scars which are otherwise rated under Diagnostic Codes 7800-7804, are also to be rated based on any disabling effects not provided for by Diagnostic Codes 7800-7804. This includes, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118. VA examinations show that the Veteran was seen on February 2012 for a small lesion on the left side of the neck which was excised and found to be basal cell carcinoma. The Veteran did not have present symptoms ore recurrence of the condition. After a review of all the evidence, lay and medical, the Board finds that the Veteran has one excision scar on the neck that does not result in disfigurement of the head, face, or neck, is not painful or unstable, and does not result in limitation of motion or loss of function to warrant an initial compensable rating. A January 2015 VA examination shows that the Veteran had a scar of the lower left lateral neck, four centimeters in length by 0.5 centimeters in width. The scar was described as well-healed, freely mobile, and non-painful. A March 2016 VA examination identified a one centimeter scar hidden in the fold along the base of the left rear neck. The scar measured once centimeter in length and 0.1 centimeters in width. VA examinations show that the Veteran's scar was not painful or unstable. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was no abnormal pigmentation or texture and no distortion of facial features. The Veteran's scar did not result in limitation of function and did not impact his ability to work. A 10 percent rating is assigned under Diagnostic Code 7800 when there is one characteristic of disfigurement. In this case, VA examinations show that the Veteran's neck scar was not thirteen centimeters or more in length or 0.6 centimeters wide at the widest part. The surface contour of the scar that was not elevated or depressed, adherent to underlying tissue, hypo- or hyper-pigmented in an area exceeding 39 square centimeters, and did not result in skin texture that was abnormal in an area exceeding 39 square centimeters. There was no underlying soft tissue missing in an area exceeding 39 square centimeters and the skin was not indurated and inflexible in an area exceeding 39 square centimeters. Accordingly, the Board finds that the Veteran is not shown to have any characteristics of disfigurement of the head, face, or neck to warrant a compensable rating under Diagnostic Code 7800. The Board finds that a compensable rating is not warranted under Diagnostic Code 7804 where VA examinations show that the Veteran's excision scar is not unstable or painful. See 38 C.F.R. § 4.118. Finally, the Board finds that a compensable rating is not warranted under Diagnostic Code 7805 where VA examinations show that the Veteran had no functional limitations due to his excision scar. For these reasons, the Board finds that the criteria for an initial compensable rating for the service-connected excision scar on the neck have not been met. Because the preponderance of the evidence is against the claim, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016). ORDER Service connection for an acquired psychiatric disorder, diagnosed as depression and anxiety, is granted. An initial compensable rating for residuals of basal cell carcinoma, rated as an excision scar on the neck, is denied. REMAND The record shows that the Veteran has consistently identified symptoms of bowel incontinence which he attributes to service-connected diverticulitis. While the Veteran was afforded a September 2016 VA examination for rectum and anus conditions, the examiner indicated that the examination was for claimed hemorrhoids, and did not clearly address whether or not the Veteran had symptoms related to a loss of bowel control secondary to service-connected diverticulitis. VA examinations for the evaluation of diverticulitis similarly do not address this question. In order to afford the Veteran every benefit of the doubt, the Board finds that a remand for a VA examination is necessary to address whether the Veteran has bowel incontinence or loss of bowel control secondary to diverticulitis. The Veteran has submitted an appeal to the initial rating assigned for sleep apnea with asthma, to include the question of whether separate ratings are warranted for each disability. The rating criteria at 38 C.F.R. § 4.96 provide that "[r]atings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other." The regulatory language continues that, in instances where there are two disabilities falling under the foregoing restriction, "[a] single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." 38 C.F.R. § 4.96 (a). Thus, the Board finds that consideration of both the rating criteria asthma and for sleep apnea is warranted in order to (1) address which diagnostic code reflects the predominant disability, and (2) address whether elevation to the next higher evaluation is warranted. A January 2015 VA examination for asthma included pulmonary function testing, but only listed pre-bronchodilator findings. Under VA's rating procedures, however, the use of post-bronchodilator findings is standard in pulmonary assessment and assures consistent evaluations. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996). Moreover, the examiner did not identify any of the exceptions listed under 38 C.F.R. § 4.96 (d) where post-bronchodilator studies are not required. Therefore, the January 2015 VA examination is not adequate for rating purposes, and a remand for pulmonary function testing which includes post bronchodilator findings is warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a supplemental VA examination to address the question of whether the Veteran has symptoms related to a loss of bowel control or incontinence secondary to service-connected diverticulitis. If so, the examiner should evaluate the severity of such symptoms with consideration of the rating criteria under Diagnostic Code 7332. 2. The Veteran should be afforded a supplemental VA examination to address the severity of service-connected asthma. Pulmonary function tests must include both pre- and post- bronchodilator studies. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs