Citation Nr: 1756446 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-08 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for calluses. 2. Entitlement to service connection for a low back disability. 3. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB). 4. Entitlement to an initial compensable rating for a food intolerance. 5. Entitlement to an initial compensable rating for hand eczema versus tinea manus (a skin disability of the right hand). 6. Entitlement to an initial compensable rating prior to June 14, 2013, and 10 percent thereafter, for disruption of the right wrist ligament (now rated as right wrist degenerative arthritis), with a period of 100 percent temporary total disability from December 22, 2014, to June 30, 2015. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 2004, to include service in Southwest Asia. This matter comes before the Board of Veteran's Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his March 2014 substantive appeal, the Veteran expressly excluded the issues of entitlement to service connection for bunions and entitlement to an initial compensable rating for a right ring finger disability. Therefore, those issues are not in appellate status. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2016. A transcript of the hearing is of record. The Board notes that additional evidence has been associated with the claims file following the most recent supplemental statement of the case (SSOC), and that the Veteran has not waived consideration of that evidence by the Agency of Original Jurisdiction (AOJ). To the extent the additional evidence was submitted by the Veteran, no formal waiver of AOJ consideration is required, as the Veteran's substantive appeal was received after February 2, 2013, and he has not expressly requested initial evidentiary review by the AOJ. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). The issues of entitlement to service connection for a low back disability, and entitlement to initial compensable ratings for a skin disability of the right hand and a right wrist disability, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for entitlement to service connection for calluses. 2. For the period prior to September 3, 2014, the Veteran's PFB did not affected at least 5 percent of his entire body or of his exposed areas; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were not required for a total duration of less than six weeks a 12-month period. 3. For the period beginning September 3, 2014, the Veteran's PFB required intermittent systemic therapy for a total duration of less than six weeks in a twelve-month period. 4. For the entire period on appeal, the Veteran's stomach disability has at times shown symptom combinations productive of moderate impairment of health. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to service connection for calluses have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. For the period prior to September 3, 2014, the criteria for an initial compensable rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). 3. For the period beginning September 3, 2014, the criteria for a 10 percent disability rating, but no higher, for PFB have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). 4. The criteria for an initial rating of 10 percent, but no higher, for a stomach disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.114, Diagnostic Code 7399-7301 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). I. Withdrawal At his July 2016 hearing before the undersigned VLJ, the Veteran withdrew his appeal as to the issue of entitlement to service connection for calluses. 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. § 7105. A substantive appeal may be withdrawn by a veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Thus, as the Veteran expressed his desire at his hearing to withdraw his appeal of that issue, there remains no allegation of error of fact or law for the Board to address with respect to the claim service connection for calluses. Accordingly, the Board does not have jurisdiction over the issue, and dismissal is warranted. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). PFB The Veteran was awarded service connection for PFB in August 2011, and was assigned a noncompensable disability evaluation. He asserts that the disability is worse than the rating assigned. The Veteran's PFB is evaluated under Diagnostic Code 7806 for dermatitis or eczema. 38 C.F.R. § 4.118. Pseudofolliculitis is defined as erythematous follicular papules or, less commonly pustules resulting from close shaving of very curly hair. Stedman's Medical Dictionary, 27th ed. at 1470. Dermatitis is inflammation of the skin. Id., at 479. Eczema is the generic term for inflammatory conditions of the skin, particularly with vesiculation in the acute stage, typically erythematous edematous, papular, and crusting. Id., at 566. As the symptoms of pseudofolliculitis are similar to those of eczema, and can include disfigurement of the face and neck, rating the Veteran's pseudofolliculitis barbae under Diagnostic Code 7806 is appropriate. See Butts v. Brown, 5 Vet App 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). Under Diagnostic Code 7806, a 10 percent rating is warranted for a skin disorder that affects 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 requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted for a skin disorder that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted for a skin disorder that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Diagnostic Code 7806 also provides that a skin condition can be rated based on disfigurement of the head, face, or neck (Diagnostic Code 7800) or as a scar under Diagnostic Codes 7801-7805, depending on the predominant disability. 38 C.F.R. § 4.118. A private dermatology treatment record dated February 2011 notes the Veteran reporting razor bumps for many years, and that he only shaved every three to four days. He denied any oral medications. Physical examination revealed multiple ingrown hairs and post-inflammatory hyperpigmentation in the Veteran's beard area, including the face and neck. The Veteran was prescribed topical Retin-A gel and Cleotin-T solution as treatment. Shaving with a non-electric razor was also recommended. A follow-up record dated May 2011 noted the Veteran's PFB had improved, with "a few hypertrophic, flesh-colored papules on the neck bilaterally." The Veteran was afforded a VA examination for his PFB claim in April 2011. The Veteran reported that his PFB has been constant since active service, manifested by bumps in the facial shaving area. The examination report notes no history of systemic symptoms. Upon physical examination, the examiner noted that the Veteran's PFB covered less than 5 percent of both the total exposed area and total body area, noting a 3 millimeter bump on the Veteran's left neck, and coarse diffuse 1 millimeter hyper-pigmented raised bumps covering 2 percent of his lower neck. An additional private treatment record dated May 2016 notes that the Veteran was prescribed an oral medication for his PFB, Doxycycline, at a previous appointment on September 3, 2014. The Veteran reported that the medication helped but that he did not refill due to travelling. The physician noted ingrown hairs and follicular papules in the beard area. The Veteran was prescribed a topical corticosteroid, Elocon, and Minocycline tablets daily, and was counseled on skin care and shaving techniques. At his July 2016 hearing testimony, the Veteran reported ingrown hairs and irritation on the face and neck area. He noted intermittent dermatology treatment for the previous four or five years consisting of oral and topical medications. Based on the foregoing, a higher 10 percent evaluation is warranted for the Veteran's PFB from September 3, 2014, as the Veteran's private dermatologist noted that he was prescribed daily Doxycycline. In May 2016 he was prescribed daily Minocycline. The Board notes that the Veteran testified in July 2016 that this treatment was intermittent due to stomach side effects. As this evidence indicates intermittent systemic therapy, the higher rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. As systemic therapy was not required prior to September 3, 2014, a compensable rating cannot be assigned prior to that date based on treatment for the Veteran's PFB. The Board acknowledges the Veteran's frequent use of topical treatment during the entire period on appeal - including a topical corticosteroid - and that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total body area affected by his PFB. However, the Federal Circuit has found that Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit explained 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 anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355. While the Veteran very well may have applied a topical corticosteroid to his skin rash for durations that would warrant higher disability ratings under Diagnostic Code 7806, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only the beard area affected by his PFB, which the evidence suggests has affected less than 5 percent of his entire body. Thus, at no time during the period on appeal has the Veteran's topical treatment for his PFB constituted "systemic therapy" for the purposes of Diagnostic Code 7806. The evidence is also against a finding that a compensable evaluation is warranted under Diagnostic Code 7806 prior to September 3, 2014 or that a rating higher than 10 percent is warranted since that date based on the area affected by PFB. The Veteran's PFB affected less than 5 percent of the entire body or of exposed areas throughout the appeal period. For the purposes of Diagnostic Code 7806, "exposed areas affected" relates to percentage of exposed areas on the body as a whole, not simply the Veteran's exposed beard area. The Veteran's private physician in 2011 noted that the Veteran's PFB had improved with topical treatment alone. Moreover, the VA examiner in April 2011 noted that less than 5 percent of the Veteran's total body area was affected by his PFB. In May 2016 and at his hearing the Veteran reported that his PFB affected his beard area. This is the same area noted by the 2011 examiner who found that the Veteran's PFB covered less than 5 percent of both the total exposed area and total body area. The Board has also considered whether a higher or separate rating is warranted under any other diagnostic code, but has found none. The evidence of record does not suggest that the Veteran's skin rash has caused disfigurement of the head, face, or neck that would warrant a higher rating under Diagnostic Code 7800, nor does it suggest that the Veteran's skin rash has resulted in scarring that would warrant a higher rating under Diagnostic Codes 7801-7805. 38 C.F.R. § 4.118. In summary, the Board finds that a 10 percent evaluation is warranted for the period beginning September 3, 2014 for the Veteran's PFB. Food Intolerance The Veteran is service connected a "food intolerance to fatty and other foods," initially claimed as stomach hematuria/bleeding, and was awarded an initial noncompensable evaluation effective July 8, 2010. He asserts that the symptoms of his disability warrant a higher initial rating. The Veteran's stomach disability is rated under hyphenated diagnostic code 7399-7301. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. For example, Diagnostic Code 7399 is used to identify unlisted digestive system disabilities. Under Diagnostic Code 7301, which provides rating criteria for adhesions of the peritoneum, mild symptoms warrant a noncompensable rating. 38 C.F.R. § 4.114, Diagnostic Code 7301. A 10 percent disability rating requires moderate adhesions that are manifested by pulling pain on attempting to work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. Id. Moderately severe adhesions warrant a 30 percent rating and are manifested by partial obstruction with delayed motility of barium meal and less frequent and less prolonged pain. Id. Severe adhesions, with definite partial obstruction, shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, warrant a 50 percent rating. Id. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination for his claim in April 2011. He reported first noticing stomach distress while in active service and was given a profile for separate rations due to intolerance to the dining facility food. He also reported continued intolerance to fatty foods and a poor appetite, and that he was on a restricted diet. The examination report noted a negative medical history for hospitalization, trauma, neoplasm, any periods of incapacitation, gnawing or burning pain, gastric surgery, abdominal colic, abdominal distention, vomiting, and diarrhea. The report did, however, note nausea several times per week, early satiety, episodes of mild hematemesis 20 years prior, and occasional absences from work. Upon physical examination, there were no signs of significant weight loss, malnutrition, or anemia, but there was abdominal tenderness. The examiner diagnosed stomach bleeding as a result of intolerance to fatty and other foods. A private digestive health treatment record dated March 2014 notes the Veteran reporting anemia on and off since 2004, frequent diarrhea, intermittent blood in his stool, and occasional nausea; he denied fatigue, fever, weight loss, vomiting, poor appetite, heartburn, dysphagia, or abdominal pain. The Veteran underwent a colonoscopy the following May, which indicated no evidence of polyps, cancers, diverticulosis, or colitis. At his July 2016 hearing before the undersigned, the Veteran stated that he is "always either nauseated or at a high state of diarrhea" and that he has difficulty keeping food down. His only treatment had been a restricted diet. A treatment record dated August 2016 notes that lab results indicated that the Veteran tested positive for H. Pylori after a complaint of nausea and diarrhea the previous month. A follow-up endoscopy performed the following September indicated findings compatible with gastritis. Erythema of the mucosa was noted in the antrum of the Veteran's stomach. Based on the foregoing, the Board finds that an initial disability rating of 10 percent is warranted under Diagnostic Code 7301. The record reveals that despite no material weight loss, the combination of the Veteran's symptoms that included occasional abdominal pain, anemia, diarrhea, bloody stool, and nausea is productive of moderate impairment of health. Notably, the Veteran consistently reported stomach symptoms dating back to his separation form service, and the VA examiner noted that the Veteran's symptoms caused occasional absence from work. A higher 30 percent rating under Diagnostic Code 7301 is not warranted as the evidence is against a finding that the Veteran's symptoms are moderately-severe. See 38 C.F.R. § 4.114. Additionally, the Board has also considered whether an additional or higher rating is warranted under another Diagnostic Code. In that regard, the Board notes that under 38 C.F.R. § 4.114, "[r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other." Rather, a single evaluation should be assigned under the Diagnostic Code which best reflects the predominant disability picture, and elevation to the next higher evaluation may be allowed where warranted by the severity of the overall disability. Here, the predominant disability picture is covered by the currently-assigned Diagnostic Code, as the Veteran's symptoms are primarily those addressed in Diagnostic Code 7301. While the Board acknowledges that the record reflects a diagnosis of gastritis, the evidence does not reflect the presence of multiple small eroded or ulcerated areas, the criteria for higher ratings under Diagnostic Code 7307 for gastritis. 38 C.F.R. § 4.114. Accordingly, resolving the benefit of the doubt in the Veteran's favor, a 10 percent disability rating, but no higher, is warranted for the period on appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER The appeal as to the issue of entitlement to service connection for calluses is dismissed. Entitlement to an initial compensable rating for pseudofolliculitis barbae prior to September 3, 2014, is denied. Entitlement to a disability rating of 10 percent, but no higher, for pseudofolliculitis barbae from September 3, 2014, is granted, subject to regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 10 percent, but no higher, for food intolerance is granted. REMAND While the Board regrets further delay, additional development is necessary as to the Veteran's remaining claims. The Veteran asserts that he has a low back disability that is related to service. Service treatment records reflect an April 2001 complaint of lower back strain from an injury following a basketball game. Upon separation form service in June 2004, the Veteran reported a history of additional back strains while on active duty for which he did not seek medical care. A VA treatment record dated September 2010 notes the Veteran reporting a five year history of back pain that began in active service. At a VA examination in April 2011, the Veteran reported progressively worsening back pain since the 1990s, and that he was advised by a previous physician that he had degenerative disc disease. Upon physical examination and diagnostic testing, the VA examiner, however, diagnosed only recurrent back strain. The examiner opined that the Veteran's low back disability was less likely as not caused by or a result of his military service, including in-service low back strains, explaining that the Veteran had minimal lumbar episodes in service with no complaints during in-service examinations. A VA treatment record dated July 2016 notes the Veteran again reporting that degenerative disc disease was diagnosed by a private orthopedist in 2010. While no significant degenerative changes were observed by X-ray, magnetic resonance imaging (MRI) testing performed in July 2017 confirmed degenerative disc disease. As the etiology of this new diagnosis was not addressed by the VA examiner in April 2011, a new examination is warranted to address whether the Veteran's degenerative disc disease is at least as likely as not related to his in-service back strains. Regarding the Veteran's claims for higher ratings for his service-connected skin disability of the right hand and his right wrist disability, the Board notes that a review of the evidence since the last September 2014 SSOC demonstrates that new evidence has been associated with the claims file. Specifically, VA obtained additional examinations for both disabilities in July 2015, as well as an additional wrist examination in November 2016. Further, additional treatment records, to include VA treatment records, have been associated with the claims file. An additional SSOC must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. The Board recognizes that although the Veteran's substantive appeal was received after February 2, 2013, the automatic waiver provision noted earlier in this decision does not apply to the Veteran's wrist disability claim because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). As noted above, this provision only applies to evidence submitted by the Veteran. Therefore, the issue of entitlement to higher ratings for the Veteran's wrist disability and right hand skin disability must be remanded to allow for AOJ consideration of the additional examinations and VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA spine examination to determine the nature and etiology of any current low back disability. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. After a review of the evidence of record, the examiner should address the following: Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the disability began in service, was caused by service, or is otherwise related to service. The examiner's attention is directed to service treatment records indicating multiple incidents of low back strain, the Veteran's continued complaints of low back pain since, the current diagnosis of degenerative disc disease as shown in MRI results, and the Veteran's assertion that the diagnosis existed in 2010. In providing the requested opinion, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A complete rationale for any opinion expressed - to include citation to specific medical documents and clinical findings - must be included in the report. 3. After completing the above actions and any other development deemed necessary, review the additional evidence added to the record since the September 2014 supplemental statement of the case, including as to the issues of higher disability ratings for the Veteran's service-connected eczema versus tinea manus and right wrist disability, and readjudicate the claims on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must 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. 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. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs