Citation Nr: 1759977	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  08-02 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a cervical spine disability, to include as due to a lumbar spine disability.

2.  Entitlement to service connection for peptic ulcer disease, to include as due to a lumbar spine disability.

3.  Entitlement to service connection for a left wrist disability.

4.  Entitlement to service connection for a musculoskeletal disability, to include muscle injury, muscle spasms, chest pain, and a hand and arm disability, to include as due to a lumbar spine disability.

5.  Entitlement to a compensable rating for bilateral hearing loss.

6.  Entitlement to a compensable rating for a skin disability characterized as lichen planus.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Zi-Heng Zhu


INTRODUCTION

The Veteran served on active duty from February 1974 to February 1977.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, dated in August 2006, May 2009, and January 2012, and the RO in Cleveland, Ohio dated in March 2004.  Jurisdiction was transferred to the RO in Oakland, California.

This case was remanded in March 2015 and August 2015 for further development, include scheduling a hearing and conducting VA examinations.  In May 2015, the Veteran provided testimony before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  VA examinations were also conducted, substantially completing the requests of the Board remand.  Claims for service connection for a psychiatric disability and traumatic brain injury were also remanded in August 2015.  However, service connection was subsequently established for a psychiatric disability with traumatic brain injury and those claims are no longer on appeal.
The issues of entitlement to service connection for a cervical spine disability, left wrist disability, and musculoskeletal disabilities are REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

1.  The preponderance of the evidence is against a finding that any diagnosed stomach disability, to include peptic ulcer disease (PUD), is etiologically related to any aspect of active service; or was not caused or aggravated by a service-connected back disability, to include as secondary to medication taken for service-connected disabilities.  

2.  Bilateral hearing loss was manifested by no more than Level II for the right ear, and no more than Level I for the left ear on Table VI.

3.  The preponderance of evidence is against a finding that a skin disability has been manifested by symptoms that affect more than five percent of the entire body or exposed areas, or requires systemic treatment or intensive light therapy.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a stomach disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655 (2017).

2.  The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.383, 3.385, 4.85, 4.86 (2017).

3.  The criteria for a compensable rating for a skin disability characterized as lichen planus have not been met.  38 U.S.C. § 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7822 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified by letters dated in December 2007, January 2009, July 2009, and May 2011.

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). 

Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudications of that supplemental statement of the cases and statement of the cases dated in July 2009, January 2010, March 2014, and September 2017.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). 

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, or other available evidence.  Thus, the Board finds that VA has satisfied the duty to assist.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active service or, if pre-existing active service, was aggravated during active service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017).

Service connection may also be granted for any disease diagnosed after separation from service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active service.  38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017). 

Direct service connection requires evidence of a current disability; an in-service disease or injury; and a nexus between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disability; (2) a service-connected disability; and, (3) evidence establishing a connection between the service-connected disability and the current disorder.  38 C.F.R. § 3.310 (2017).

In addition, the regulations provide that service connection is warranted for a disability that is aggravated by, proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).

Service connection may also be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017).  Peptic ulcers are a chronic condition in which can be presumptively service-connected if manifest to a compensable degree within one year following separation from service.  Therefore, a claim based on continuity of symptomatology must be considered.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992).  With any piece of evidence, the credibility and weight to be assigned to the opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993).

When there is an approximate balance of positive and negative evidence regarding a material issue, in resolving each issue, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2017).  Only if the Board determines that the preponderance of the evidence is against the claim, will the claim be denied. 
Gastrointestinal Disability

The Veteran claims that a current gastrointestinal disability, to include a diagnosis of peptic ulcer disease (PUD), had its onset during active service and has continued to the present.  Additionally, the Veteran claims that the disability is aggravated or caused by medication for a service-connected back disability.  The Board finds that a review of relevant evidence of record, to include VA examinations and opinions, medical records, and lay statements, shows that the current gastrointestinal disability did not have its onset during service, and is not etiologically related or aggravated by a service-connected back disability or medication taken for that disability.  Therefore, the Board finds that the claim for service connection must be denied. 

A review of the medical records and VA examinations shows that the Veteran has a diagnosis of PUD.  A November 2016 VA examination diagnosed PUD.  Thus, the Veteran has a current disability.

The service medical records show that in June 1975 the Veteran was treated for a stomach condition which was determined to be gastroenteritis.  The Veteran has also provided lay statements and hearing testimony asserting that his stomach condition arose during active service and has progressed to the present.  The Board finds that evidence shows inservice treatment of a stomach condition. 

The Board finds that the competent medical evidence of record shows that the current PUD is not related to any incident of active service or medication for a service-connected back disability.

An October 2015 VA examination diagnosed PUD.  The VA examiner, after a review of the Veteran's medical records and history, to include the service medical records, noted that the Veteran had stomach issues during active service.  The examiner opined that the Veteran's in-service stomach condition was more likely than not acute and transitory, and could not be directly linked to any current condition.  Considering that evidence and considering that the Veteran was only diagnosed with PUD in 2006, decades after separation from service, the examiner concluded that the Veteran's current stomach disability was less likely than not caused by any aspect of active service.  

In a November 2016 VA examination, upon physical examination of the Veteran and noting the conditions and complaints, the examiner diagnosed PUD.  Following a review of the claims file and the medical history, to include service medical records, the VA examiner ultimately concluded that that the current PUD was less likely than not etiologically related to any aspect of active service or to have had its onset in service.  The examiner reasoned that in the absence of a specific diagnosis for a condition such as PUD in service, a link between the current condition and stomach issues during service cannot be substantiated.   The only in service stomach issue noted was gastroenteritis which the examiner noted was transitory, and is not known to cause ulcers, to specifically include PUD.  The examiner found that there was no evidence of a diagnosis of PUD or any ulcers during service, or immediately after service.  The Veteran was not diagnosed with PUD until 2006, decades after service.  Accordingly, the examiner ultimately concluded that the PUD was not etiologically related to active service. 

The VA examiner also considered the claim for secondary service connection, related to long-term medical treatment for a service-connected back disability.  The Veteran's main contention is that PUD is secondary to medications taken for the service-connected back disability and back pain.  The Veteran claims, and has consistently asserted, that PUD was caused, or at least aggravated by a long history of back pain, which required pain medication.  However, the examiner opined that medication was less likely than not the cause of PUD.  The examiner opined that PUD is based on a bacterial infection from H Pylori, and not the result of the Veteran's body processing medication such as NSAIDS.  Likewise, in a February 2017 addendum opinion, the examiner opined that because of the bacterial nature of the Veteran's PUD, that the medications were less likely than not to have aggravated the PUD. 

The Board notes that a further review of the service medical records and post-service medical records does not show any evidence that would relate any current stomach condition with service, or a back disability, to include those medications prescribed for pain.  Nor does the post-service medical evidence show a link between PUD and active service, to include any evidence of continuous treatment for stomach issues since separation from active service.  There is no evidence of record that shows that any PUD manifested to a compensable degree within one year following separation from service.  Overall, the record since active service does not provide contrary evidence to the VA examiners opinions and is consistent with those opinions of record.  For all of these reasons, the Board finds the October 2015, November 2016, and February 2017 VA examinations and opinions to be of the highest probative value of record, and as they are against establishing the Veteran's claim for service connection on a direct or secondary basis, service connection must be denied.  The Veteran has not submitted any contrary competent medical evidence that suggests that PUD is related to service, any event in service, or is caused or aggravated by a back disability or medications for a back disability.

In arriving at this conclusion, the Board remains cognizant of the Veteran lay statements and testimony, and acknowledges that the Veteran is competent, as a layperson, to attest to factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  Lay evidence can be competent and sufficient to establish a diagnosis of a disability when:  (1) a layperson is competent to identify the medical disorder (such as example a broken leg, not a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board has considered the Veteran's lay assertions about the etiology of PUD.  The Board acknowledges that the Veteran's lay assertions that he has had from a stomach condition since service or, in the alternative, that his stomach condition was the result of medication taken for a back disability.  However, while he is competent report symptoms, such as pain and nausea, complex medical matters such as the etiology or even diagnosis of an internal medical condition such as the development of PUD is outside the competency of a lay person.  The Board finds that, as a lay person, the Veteran lacks the medical education, training, and experience to provide a competent medical opinion on the relationship between medications for service connected disabilities and the claimed PUD.  38 C.F.R. § 3.159(a) (2017).  While the Veteran may, and has, asserted progressive stomach issues during and since service, he does not have the medical competency to provide an actual diagnosis, to specifically include PUD, or relate a current gastrointestinal disability to service.  Accordingly, the lay opinion is of little probative value and is outweighed by the competent medical opinions.

Therefore, as the preponderance of the evidence is against the claim, service connection for PUD must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1 (2017). 

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017).

Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7 (2017).


Hearing Loss

The Veteran has been provided with multiple VA examinations, most recently in November 2016, to assess the nature and severity of service-connected bilateral hearing loss.  The examiners reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board concludes that the VA examination reports have provided all of the testing and information needed to fairly adjudicate the claim, and are adequate for the purpose of making a decision.  38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist.  Accordingly, the Board will proceed with a decision.

Here, the Veteran contends that his hearing loss disability is of such severity as to warrant at least a compensable rating.  Assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are conducted.  38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII (2017). 

Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test.  38 C.F.R. § 4.85(a) (2017).  Numeric designations of Levels I through XI are assigned by application of Table VI, in which the percentage of discrimination is intersected with the pure tone decibel loss.  38 C.F.R. § 4.85, Table VI (2017).  The results are then applied to Table VII, for a percentage rating.  Pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases, including those in 38 C.F.R. § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85 (d)(2017). 

Where pure tone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied.  38 C.F.R. § 4.86 (a)(2017).  When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied.  38 C.F.R. § 4.86 (b)(2017).

The present claim for an increased rating arises from a claim for service connection for bilateral hearing loss.  On VA examination in December 2005, pure tone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
15
35
70
85
51
LEFT
25
30
45
70
42

Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 88 percent in the right ear, and 94 percent in the left ear.  The examiner opined that the Veteran had sensorineural hearing loss in both ears. During the examination, the Veteran reported he had difficulty hearing and had to ask people to repeat themselves in conversation.  

Applying the findings of the December 2005VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable rating have not been met.  The Veteran's hearing acuity was measured using 38 C.F.R. § 4.85, Table VI.  38 C.F.R. § 4.86 (a)(2017).  Under Table VI, the right ear hearing acuity was manifested by a level II impairment, and the left ear was manifested by a hearing acuity of a level I impairment.  The Board notes that all frequencies tested were not over 55 for either ear during either examination.  Therefore, application of VIA is not proper.  38 C.F.R. § 4.86 (a)(2017).  Applying Table VI for an average loss 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss.

On VA examination in November 2016, pure tone thresholds, in decibels, were:





HERTZ



1000
2000
3000
4000
Average
RIGHT
30
40
80
95
65
LEFT
40
40
50
90
55

Speech audiometry test using a Maryland CNC word list revealed speech recognition ability of 94 percent in the right ear, and 96 percent in the left ear.  

Applying the findings of the November 2016 VA audiological examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable rating have not been met.  The Veteran's hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86 (a)(2017).  Under Table VI, the right ear hearing acuity was manifested by a level II impairment, and the left ear was manifested by a hearing acuity of a level I impairment, warranting a 0 percent rating under the appropriate table.  As not all frequencies tested were over 55 for either ear, application of Table VIA is inappropriate. 38 C.F.R. § 4.86 (a)(2017).  

The Board finds that the results of the audiology examinations are contemporaneous and indicative of the severity of the current disability.  Accordingly, those results are the most probative in determining whether the Veteran's hearing disability warrants a higher disability rating.  The Board notes that in addition to providing objective test results, the VA audiologists fully described the functional effects caused by the Veteran's hearing disability in their final reports.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Board has considered the Veteran's statements regarding the severity of his hearing loss, his difficulty hearing other people and in conversation, and how he must ask people to repeat conversations.  The Board does not discount the difficulties that the Veteran experiences as a result of his hearing loss.  However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

As the mechanical application of the rating schedule yields no more than a 0 percent rating, the preponderance of the evidence is against a finding that a higher rating is warranted on a schedular basis.  Thus, the claim for a higher schedular rating must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).

Consideration has been given to assigning further staged ratings.  However, at no time during the period under review has the disability warranted a higher schedular rating than those ratings currently assigned.  The Board accepts the test results as reliable as the evidence of record does not show that the results are not reliable.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of higher ratings for hearing loss, and the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Other Considerations

Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors which would make application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993).  An extraschedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would make impractical the application of the regular schedular standards.  38 C.F.R. § 3.321 (b)(1)(2017). 

There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms.  Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the rating criteria for hearing loss reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  The evidence does not show anything unusual or exceptional that would make the schedular criteria inadequate in this case.  The record shows that the manifestations of the disability are contemplated by the schedular criteria.  There is no indication that the average industrial impairment from the hearing loss disability is in excess of that contemplated by the assigned ratings.  A higher rating is available for more severe levels of impairment, but the Veteran does not meet the criteria for the higher rating.  The evidence does not show frequent hospitalizations or that hearing loss caused marked interference with employment or his prior employment.  Therefore, the Board finds that referral for extraschedular consideration is not in order.

Skin Disability

The Veteran's service-connected lichen planus is rated under the provisions of Diagnostic Code 7822, for rating lichen planus.  Under Diagnostic Code 7822, a 0 percent rating is assigned in cases where less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period.  A 10 percent rating is assigned where 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 are affected, or; systemic therapy or intensive light therapy was required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is assigned in cases where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy or intensive light therapy was required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is assigned in cases where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, and constant or near-constant systemic medications or intensive light therapy were required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7822 (2017). 

According to Diagnostic Code 7822, the Veteran's service-connected skin disability may also be rated as disfigurement of the head, face, or neck (under Diagnostic Code 7800) or scars (under Diagnostic Codes 7801-7805), depending upon the predominant disability.

The Veteran seeks a compensable rating for service-connected lichen planus. During a hearing before the undersigned, the Veteran testified that his skin condition required the use of topical steroids and creams, and that he experienced flare-ups of the elbows and knees, especially when exposed to sunlight.

At a June 2011 VA general examination, the examiner diagnosed lichen planus.  The condition was noted to affect areas on the hands, elbows, penis, and occasionally on the knees.  On examination, the condition manifested with numerous, but small, regions of hypopigmentation between 3 to 4 millimeters in diameter on both hands and some hyperkeratotic skin measuring 1.5 by 1.5 centimeters on the elbow.  The examiner noted that Veteran used a topical cream for treatment during flare-up on affected areas where there was found to be splitting of the skin, mostly after exposure to the sun.  The report does not note any assertion from the Veteran of the skin condition affecting any other part of the body.  Therefore, the VA examiner concluded that the condition affected less than one percent of total and exposed area of the body.  

A November 2016 VA examination diagnosed lichen planus.  The Veteran complained of some pain due to the skin condition, to include on the penis.  The Veteran did not complain of any scarring or systemic manifestations due to the skin condition.  The examiner noted only topical treatment of less than six weeks in the last 12 months, with corticosteroids, on the affected areas only.  On examination, the examiner noted that the Veteran did not have any visible skin conditions at the time of examination, or symptoms of any other skin conditions.  Objectively, the only indication of the diagnosed condition upon examination was some hyperpigmentation on the palmar surface of the middle finger, bilaterally, covering less than 2 by 3 millimeters in diameter.  

The Board finds that a preponderance of the evidence is against a finding that the Veteran is entitled to a compensable rating for service-connected lichen planus.  Objective findings from both the previous VA examinations found consistently that the Veteran's lichen planus covered less than 5 percent of the entire body and exposed areas affected.  The evidence also does not show that the skin disability has required systemic therapy or intensive light therapy.  The medical and lay evidence throughout the appeal period consistently shows that the treatment for lichen planus has been limited to the use of creams only on the affected areas.  The Veteran used corticosteroids in the form of topical creams to only the limited affected areas, which are not considered systemic treatment. 

Although the Veteran was prescribed corticosteroids cream, that cream is different from systemic treatments required to warrant a higher rating.  Diagnostic Code 7806 distinguishes topical therapy from systemic therapy, and that topical corticosteroid treatment is not equivalent to systemic corticosteroid treatment.  Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).  The evidence does not show that the Veteran's topical treatment was applied to "the body as a whole," and does not equate to systemic therapy.  Accordingly, as the evidence of record does not show that the Veteran's condition covers more than 5 percent of the entire body or more than 5 percent of exposed areas, and does not require systemic or intensive light therapy, the Board finds that a compensable rating is not warranted.

The Board has also considered whether there are any other diagnostic codes which will provide the Veteran with a higher rating, but finds that there are not.  The evidence does not show that the Veteran has any scaring due to the skin condition, deep, nonlinear, or otherwise.  Accordingly, an increased rating is not warranted under other diagnostic codes for disabilities of the skin.  38 C.F.R. § 4.118, Diagnostic Codes 7801, 7815, 7816, 7817, 7821, 7822, 7824, 7825, 7826, 7827 (2017). 

Likewise, as the medical evidence does not indicate any disfigurement of the head, face, or neck during the rating period, or of residual scars, higher or separate ratings are not warranted under other potentially applicable diagnostic codes.  38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801-7805, 7822 (2017). 

The Board recognizes that the Veteran's skin disability has been shown to have active and inactive stages, or flare-ups.  Where the rating a disability that fluctuates in degree of disability is at issue, an examination of the disability during an active stage or during an outbreak is generally required.  Ardison v. Brown, 6 Vet. App. 405 (1994) (frequency and duration of skin outbreaks and the appearance and virulence of symptoms during such outbreaks must be addressed).  However, the Veteran has been provided multiple VA examinations, at different times of the year, and to include during the active stage of the skin disorder, during the first examination in 2011, when the Veteran seemed to have been having a flare-up.  Therefore, the Board finds that the results of that examination, with the other pertinent evidence detailed above, sufficiently represent the severity and provide a sufficient overall picture of the service-connected lichen planus.  The Board further finds that the evidence collectively establishes that the Veteran is not entitled to higher rating for lichen planus under the applicable schedular criteria.

To the extent that the Veteran asserts that lichen planus covers a greater percentage of exposed or total body area, the Board finds that assertion is outweighed by competent VA examination reports.  The Veteran has not suggested manifestations of the skin disability in areas not already accounted for in the examinations, that is his hand, elbows, knees, and penis.  Accordingly, as the objective areas affected by the skin disability are shown by the record, and the Veteran's contentions, the Board finds that the assignment of percentage of the body affected by the skin disability determined by the VA examiners, specifically the June 2011 examiner of less than one percent of exposed areas or total body area to be most probative. 

Therefore, as the preponderance of the evidence is against a finding that the skin disability requires systemic treatment or intensive light therapy, or covers more than 5 percent of total or exposed body area, the claim for a compensable rating must be denied.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a gastrointestinal disability, to include peptic ulcer disease, to include as due to or aggravated by a lumbar spine disability, is denied. 

Entitlement to a compensable rating for bilateral hearing loss is denied. 

Entitlement to a compensable rating for a skin disability characterized as lichen planus is denied. 


REMAND

The Board finds that additional development is required for the claims on appeal for service connection.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims.

With regard to the claims for service connection for neck, left wrist, and musculoskeletal disabilities, the Board finds that the opinions obtained on the last remand are incomplete, and remand is required to obtain additional opinion for VA to fulfill the duty to assist the Veteran. 

VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When the medical evidence is incomplete, as it is here, VA must supplement the record by seeking an advisory opinion or ordering a medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

The Board finds that the opinions for secondary service connection specifically requested by the Board's previous remand for the claimed neck and musculoskeletal disabilities are incomplete and require addendum to specify the rationale for the opinions.  The December 2016 opinion regarding the conditions found no etiological relations between the condition and any injury during active service, or as secondary to a service-connected back disability.  However, the examiner did not reconcile that negative opinion with that of the positive opinion letter submitted from the Veteran's treating VA physician, Dr. R. K.  Dr. R. K. has submitted several opinion letters, to include an April 2015 opinion, noting that he Veteran's neck condition was related to active service when the Veteran fell and injured his "whole spine."   The Board finds that an examination must reconcile those disparate findings. 

The Board finds that further development must be made for the claim for a musculoskeletal disability.  The Board notes that the opinion offered in the December 2016 VA examination seems to be incomplete, in that it ends mid-sentence with an ellipsis.  Not only is the opinion apparently incomplete, but it also did not address any aspect of secondary service connection to a back disability.  The short opinion only notes that the conditions are due to the Veteran's labor intensive job and natural progression of the Veteran's age.  However, the examiner did not address whether the back disability aggravate the claimed musculoskeletal disability.  Consequently, the Board finds that the opinion offered by the December 2016 examiner is incomplete and further development is necessary. 

With regard to the claim for a left wrist disability, the Board finds that the November 2016 VA examination found no diagnosable left wrist disability.  Therefore, the examiner found that a left wrist disability could not have been related to service.  The Board notes that while the Veteran may not have had a diagnosed condition in the left wrist during that examination, he was diagnosed with a left wrist strain, with decreased range of motion in the left wrist, in a June 2011 VA examination during the claim period.  Any medical opinion must speak to the etiology of a disability diagnosed during the claims period.  Therefore, remand is necessary to determine the nature and etiology the diagnosed left wrist disability. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA medical records.

2.  Schedule the Veteran for a VA spine examination of the cervical spine, by a different examiner than who conducted that November 2016 VA examination, with proper expertise to determine the etiology and severity a cervical spine disability.  The examiner must review the claims file and must note that review in the report.  The examiner must review the claims file and should note that review in the report.  All indicated tests, to include X-rays, should be accomplished, and all clinical findings reported in detail.

(a)  The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed cervical spine disability was incurred in or is otherwise related to the Veteran's service.

(b)  The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed cervical spine disability is proximately due to or caused by a service-connected lumbar spine disability.

(c)  The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed cervical spine disability is aggravated (permanently increased in severity beyond the normal course of the condition) by a service-connected lumbar spine disability.  

(d)  The examiner must reconcile all opinions and rationales with those opinions previously of record to specifically include any nexus opinions by the treating physician Dr. R. K.  The examiner must explicitly address the opinions and statements by Dr. R. K. with regard to the etiology of the cervical spine disability.

(e) For the assertions of chest pain, shoulder pain, neck pain, back pain, leg pain, foot pain, muscle spasms of the back, arm pain, and hand pain, the examiner is asked to address whether the Veteran's reported symptoms are of a separate and distinct etiology or are symptoms of an existing disability.  If the examiner concludes that the complaints are of a separate and distinct etiology, then the examiner must provide an opinion as to whether any disabilities manifested by chest pain, shoulder pain, neck pain, back pain, arm pain, foot pain, and hand pain are as likely as not (50 percent probability or greater) incurred in or related to active service.

3.  Schedule the Veteran for a VA examination with an examiner with the proper expertise to determine the nature and etiology of any left wrist disability found.  The examiner must review the claims file and must note that review in the report.  A complete rationale for all opinions should be expressed.  All indicated tests, to include X-rays, should be accomplished, and all clinical findings reported in detail.  The examiner must consider the Veteran's statements regarding onset and statements regarding the continuity of symptomatology.  The examiner should provide the following:

(a)  Diagnose any current left wrist disability. 

(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any current left wrist disability to was incurred in or is due to active service or any event during service.

(c)  The examiner must consider all diagnosed disabilities noted during the claims period to include the diagnosis of a left wrist sprain and decreased range of motion in a June 2011 VA medical examination. 

4.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.§§ 5109B, 7112 (2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs