Citation Nr: 1753432 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 07-30 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for lumbar radiculopathy. 3. Entitlement to an initial compensable rating for tinea versicolor. 4. Entitlement to an initial rating in excess of 10 percent for left leg peripheral neuropathy. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from January 1973 to May 1973 and from February 2005 to June 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2007 and January 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has considered whether, consistent with the Veteran's statements, treatment records, and the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran's claim for service connection for PTSD should be expanded to include any acquired psychiatric disorder. See, Clemons, 23 Vet. App. at 1 (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Here, however, the Veteran is already service-connected for depressive disorder, and he has specifically requested service connection for PTSD. See, May 2007 Notice of Disagreement. Accordingly, the scope of the appeal is limited to service connection for PTSD. In his October 2013 substantive appeal, the Veteran requested a Board hearing. However, in a November 2016 statement, he indicated that he did not want a Board hearing. Accordingly, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (e) (2016). The issues of entitlement to service connection for PTSD and entitlement to 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 evidence of record is against a finding that the Veteran has lumbar radiculopathy. 2. The Veteran's tinea versicolor did not cover more than 5 percent or more of the entire body or any exposed body areas, and did not require systemic therapy at any point during the period on appeal. 3. Peripheral neuropathy of the left leg has been characterized by radiating pain, numbness, and weakness in the left thigh. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar radiculopathy have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for a compensable rating for service-connected tinea versicolor have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7806 (2008). 3. The criteria for a rating in excess of 10 percent for left leg peripheral neuropathy have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 8599-8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor his representative has 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). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that he has lumbar radiculopathy which manifests as low back pain that radiates to the left leg. See February 2008 VA Examination Report. The Veteran is service-connected for low back pain, as well as for left leg peripheral neuropathy. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for lumbar radiculopathy. The evidence does not show that the Veteran has a current lumbar radiculopathy disability. The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought, i.e., lumbar radiculopathy. In the absence of proof of a present disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran underwent a VA examination in February 2008 in connection with his December 2007 claim. He reported low back pain that felt like "stabbing" and an "electrical sensation." He said the pain was severe and constant, and that it radiated into his left leg. The Veteran underwent electrodiagnostic studies for the purpose of ruling out radiculopathy. The study was abnormal in that it revealed evidence of posterior rami irritability as evidenced by spontaneous activity in the left side of the lower lumbar area (L5-S1 level). The examiner stated that the study was suggestive of a sensory, predominantly axonal peripheral neuropathy. A May 2008 private treatment record shows that the Veteran had C8 radiculopathy, but there was no evidence of lumbar radiculopathy. He underwent another VA examination in August 2013. The examiner diagnosed lumbar strain. There was no muscle atrophy and the Veteran had normal deep tendon reflexes. On sensory exam, the Veteran had decreased sensation in his left thigh/knee, and in his feet/toes. Straight leg raising test was negative. There was no evidence of radiculopathy, confirmed by X-ray imaging. In forming an opinion, the examiner stated that there was no evidence of radiculopathy, and notably, the examiner stated that lumbar strain does not cause radiculopathy. The Board finds the August 2013 VA examination report to be probative, and thus finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of lumbar radiculopathy related to his service-connected disabilities. Where there is no current disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's assertions that lumbar radiculopathy has been diagnosed. However, the diagnosis of lumbar radiculopathy is a complex medical question that requires medical expertise and (unless they are reporting a doctor's diagnosis) lay persons are not qualified to provide evidence about whether a medically-diagnosable disability is present. Jandreau, 492 F.3d at 1377. Consequently, the Board finds that the preponderance of the evidence is against a finding that the Veteran now has (or at any time during or prior to the appeal period had) a diagnosis of lumbar radiculopathy. Absent evidence of a diagnosis, there is no valid claim of service connection for such disability, and the claim must be denied. See Brammer, supra. III. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. Tinea Versicolor The Veteran's service-connected tinea versicolor has been assigned a noncompensable rating since June 16, 2006, under Diagnostic Code 7806. The criteria for evaluating scars were amended effective October 23, 2008, but these most recent amendments are applicable only to claims received on or after October 23, 2008. 73 Fed. Reg. 54708 (Sept 23, 2008). Although the Veteran has not specifically requested review of his tinea disability under the revised criteria, the Board notes that the schedular criteria applicable in the instant case, 38 C.F.R. § 4.118 , Diagnostic Code 7806 remained unchanged in 2008. As such, the analysis below pertaining to evaluating the Veteran's tinea disabilities under criteria in effect from prior to October 2008 holds true when evaluating the Veteran's tinea disabilities under the current criteria. Diagnostic Code 7806 provides that when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period, a 10 percent rating is assigned. Where there is 20 to 40 percent of the entire body or 20 to 40 percent 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 30 percent rating is assigned. Where there is more than 40 percent of the entire body or more than 40 percent 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, a 60 percent rating is assigned. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Court of Appeals for Veterans Claims, in a July 2017 decision, held that topical use of corticosteroids constitutes systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The Federal Circuit, however, reversed the decision by the Court. Johnson v. Shulkin, 2016-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the Secretary that the Veterans Court erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" The Federal Circuit noted that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied." Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. In connection with his August 2006 claim, the Veteran underwent a VA skin examination in September 2006. The examiner noted that there were white patches found on both legs and on the Veteran's neck. An April 2010 VA treatment note showed that the Veteran used clotrimazole cream twice a day for a fungi infection. The Veteran underwent an additional VA examination in August 2013. The Veteran reported that his tinea versicolor was constant and reported the use of clotrimazole cream with a duration of six weeks or more, but not constant, over the previous twelve months. No other treatment was noted. Physical examination showed hypopigmented macular lesions on the bilateral upper arms, and the examiner noted that the Veteran's visible skin conditions covered less than 5 percent of the Veteran's total body area and no exposed area was affected. After a review of the pertinent lay and medical evidence, the Board finds that a compensable rating is not warranted under Diagnostic Code 7806, or any other code. The medical evidence of record shows that the Veteran's skin condition did not cover more than 5 percent of his body area. Nor did the Veteran's skin condition require "systemic" therapy as interpreted by the Federal Circuit in Johnson at any point during the period on appeal. The August 2013 VA examination report shows that the Veteran was treated with a topical cream for six weeks or more over the prior twelve months. Such treatment does not rise to what is required to warrant a 10 percent rating under Diagnostic Code 7806, which requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. There is no evidence in the record that the Veteran has used those treatments. Accordingly, a compensable rating under Diagnostic Code 7806 is not warranted. The Board has considered whether a rating for disfigurement of the head, face, or neck (former Diagnostic Code 7800) or scars (former Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) is warranted, but finds that ratings under these Diagnostic Codes are not appropriate in this case. At no time during the period under review has the Veteran alleged, or have physicians identified the presence of disfiguring scars of the head, face or neck, or scarring other than on the head, face or neck that is deep or cause limited motion related to his tinea disabilities. Indeed, the August 2013 VA examiner reported that the Veteran's skin conditions did not cause scarring or disfigurement of the head, face, or neck, and it is not shown that the Veteran has any of the designated characteristics of disfigurement for purposes of evaluation. As such, the criteria outlined in former Diagnostic Codes 7800 and 7801 are not applicable. Similarly, the evidence does not demonstrate superficial scarring due to tinea disability, or that the Veteran's skin disability limits the functioning of any affected part of his body. Therefore, ratings under former Diagnostic Codes 7802-7805 are also not applicable. To the extent that evaluations for scars have changed since October 2008 under Diagnostic Codes 7800-7805, as noted above, scarring due to tinea disabilities is not evident of record, and therefore these Diagnostic Codes would be still be inapplicable. The Board acknowledges the Veteran's lay statements asserting that his skin condition warrants a higher rating. While the Veteran is competent to report his dermatological symptoms such as rashes and irritation, as well as his skin treatment, he is not competent to make the requisite clinical findings under the relevant rating criteria, such as the area of his skin symptoms or whether his therapy is "systemic." See 38 C.F.R. § 4.118, Diagnostic Code 7806; see also, Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran contends that his skin condition warrants a higher rating than that which is assigned, it is ultimately VA adjudicators' role to apply relevant regulations and assign disability ratings. In summary, the Board finds the objective, competent medical evidence discussed above - specifically the VA examination reports - more probative than the Veteran's lay statements in establishing his specific level of symptomatology and impairment under Diagnostic Code 7806. In conclusion, the weight of the most probative evidence is against the claim of entitlement to a compensable rating for the Veteran's service-connected tinea versicolor. The benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim for a compensable rating is denied. B. Left Leg Peripheral Neuropathy The Veteran's service-connected left leg neuropathy as secondary to diabetes mellitus has been assigned a 10 percent rating since December 3, 2007 under Diagnostic Code 8599-8520. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 8599-8520 reflects that there is no diagnostic code specifically applicable to the Veteran's service-connected left leg peripheral neuropathy, and that the disability has been rated by analogy to paralysis of the sciatic nerve under Diagnostic Code 8520. See 38 C.F.R. § 4.20. Under Diagnostic Code 8520, ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. 38 C.F.R. § 4.124a. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In connection with his claim, the Veteran underwent a VA examination in February 2008. He reported low back pain that radiated into his left leg which felt like an "electrical sensation." Physical examination showed decreased sensation to light touch testing and pinprick to lateral femoral cutaneous, and vibration at the left lower extremity of 1+. Electromyography (EMG) showed left leg lateral femoral cutaneous neuropathy (meralgia paresthetica). He underwent another VA examination in May 2010. The examination report reflects that both the left and right knee reflexes (L3-L4) were 1+; and that both the left and right ankle reflexes (S1) were 0. There was no atrophy, no abnormal muscle tone, and no joint was affected by the nerve disorder. The examiner noted that paralysis and neuralgia were negative, but that neuritis was present. The Veteran was afforded an additional VA examination in August 2013. The Veteran reported that his left leg condition had worsened, and noted that he had "severe" pain and numbness in his left lower extremity. There was no muscle atrophy, and deep tendon reflexes were normal. Sensory testing for light touch showed decreased sensation in his left thigh/knee area. Evaluation of the sciatic nerve was normal; however there was moderate incomplete paralysis of the external cutaneous nerve of the left thigh. Based on the foregoing, the Board finds that the Veteran's symptoms, at most, approximate the criteria for a 10 percent rating, and no higher. The pertinent medical evidence of record shows that the Veteran has complained of numbness, weakness, and "electrical" pain down his lower back and into his lower extremities. He has at times reported the pain and numbness to be "severe." See August 2013 VA Examination Report. Pertinently, however, the clinical evidence of record shows that objective testing for nerve-related issues, deep tendon reflexes, and muscle strength has been normal, and sensory testing for light touch showed decreased sensation in the Veteran's left thigh/knee. At the August 2013 VA examination, evaluation of the sciatic nerve was normal. Although the Board acknowledges and credits the Veteran's complaints concerning his subjective experience of lower extremity peripheral neuropathy, the Board finds these statements to be of less probative value, particularly in the face of convincing and consistent medical evidence showing predominantly normal results upon objective neurological testing, and a level of disability of, at most, mild severity. The Board finds that the probative evidence shows that the impairment caused from peripheral neuropathy of the left leg is no more than mild in severity. Accordingly, the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for peripheral neuropathy of the right and left lower extremities under DC 8520. The Board has considered the application of a separate or higher rating under another diagnostic code. The Board observes that the August 2013 VA examiner found moderate symptoms relating to the Veteran's external cutaneous nerve of the left thigh, which corresponds to Diagnostic Code 8529. Under that Diagnostic Code, a 10 percent rating is the highest rating allowable, and that rating contemplates severe to complete paralysis of the cutaneous nerve. As the August 2013 VA examination did not show that the Veteran had severe to complete paralysis of that nerve, the only rating that would be available to the Veteran under Diagnostic Code 8529 would be a noncompensable one. Accordingly, that Code would not avail the Veteran. In any event, a separate rating under that Code would violate the prohibition against pyramiding with respect to peripheral nerve injuries. Accordingly, the 10 percent rating currently assigned for the Veteran's disability under Diagnostic Code 8520 is appropriate. As there is no evidence in the record that the Veteran suffers from moderate incomplete paralysis of the sciatic nerve, a rating in excess of 10 percent is not warranted. ORDER Service connection for lumbar radiculopathy is denied. An initial compensable rating for tinea versicolor is denied. An initial rating in excess of 10 percent for left leg neuropathy is denied. REMAND The Board finds that further development is required with regard to the Veteran's claim for service connection for PTSD. In this regard, there is conflicting evidence as to whether the Veteran has a PTSD diagnosis. The Board also finds that further development should be undertaken to verify the Veteran's stressor. A July 2009 memorandum in the file requested that the RO reconsider its formal finding of a lack of information required to corroborate the Veteran's claimed stressors, based on a 2006 post-deployment examination showing that the Veteran was exposed to detainees on a daily basis. However, it does not appear that such further development was accomplished; indeed, the October 2009 statement of the case denied the Veteran's claim based on the lack of corroboration of an in-service stressor. However, that denial was based on the Joint Services Records Research (JSRRC) response that was received prior to the July 2009 memorandum requesting that the RO take further development. In March 2010, the Veteran provided a statement regarding an incident where he was transporting inmates and was almost hit by incoming mortar fire. See, March 2010 Statement in Support of Claim. The claims file does not reflect that additional stressor development was undertaken at that point. In addition, the RO has denied the Veteran's claim on the basis that he has not had a PTSD diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). See, October 2013 Supplemental Statement of the Case. Indeed, the August 2013 VA examiner made that finding. However, an undated document from the United States Army Health Clinic in Puerto Rico notes a diagnosis of PTSD meeting the criteria of DSM-IV. July 2009 and December 2009 VA psychiatric progress notes show a diagnosis of PTSD. Additionally, in a May 2015 VA mental disorders examination report, the examiner noted that the Veteran did have a diagnosis of PTSD. However, as the examination was to evaluate mental disorders other than PTSD, no opinion as to the nature and onset of PTSD was offered. Accordingly, the Board finds that an addendum opinion from the same VA examiner who performed the May 2015 examination, if available, is warranted. In addition, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the claim being remanded herein, as the outcome of the service connection claim may impact the outcome of the TDIU claim. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Hence, the Board will defer appellate consideration of the issue of entitlement to TDIU pending completion of the action requested below. Accordingly, the case is REMANDED for the following action: 1. Request that the JSRRC provide information that might corroborate the Veteran's reported stressor involving nearly being hit by mortar fire while transporting inmates. All efforts to obtain this evidence should be documented in the claims file. 2. After updating the file with any additional records or findings from the JSRRC, return the claims file to the clinician who conducted the May 2015 VA examination, or if that clinician is not available, to another examiner of appropriate expertise. After review of the entire claims file, the examiner should comment on whether the Veteran has a diagnosis of PTSD, and if so, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the PTSD is related to the Veteran's active duty service, to include his reported stressors during his active duty service. The examiner should clarify whether the Veteran has had a valid diagnosis of PTSD at any point since his January 2008 claim, taking into account the various treatment records in the file showing such diagnosis. The examiner is asked to provide a complete rationale for any opinion offered. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, to include entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs