Citation Nr: 1712236 Decision Date: 04/14/17 Archive Date: 04/19/17 DOCKET NO. 12-24 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected dermatophytosis of the bilateral feet. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide, chemical, or radiation exposure. 3. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide, chemical, or radiation exposure. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to herbicide, chemical, or radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1948 to February 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2011, the RO denied the Veteran's claims for service connection for diabetes mellitus, ischemic heart disease, and peripheral neuropathy of the bilateral lower extremities, with all claims to include as secondary to herbicide, chemical, or radiation exposure. In October 2012, the RO granted service connection for dermatophytosis of the bilateral feet, evaluated as noncompensable. The Veteran and his wife testified at a Board hearing at the RO in Roanoke, Virginia in December 2012. This transcript has been associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2015). The issues of entitlement to service connection for diabetes mellitus, ischemic heart disease, and peripheral neuropathy of the bilateral lower extremities, with all claims to include as secondary to herbicide, chemical, or radiation exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected dermatophytosis of the bilateral feet are not shown to have been productive of deep and nonlinear scars covering an area or areas exceeding 6 square inches (39 sq. cm), superficial and nonlinear scars covering an area or areas of at least 144 square inches (929 sq. cm.), one or two scars that are unstable or painful, or any disabling effects not considered under Diagnostic Codes 7800 - 7804; his service-connected disability is not shown to have affected at least 5 percent of the entire body, or at least 5 percent of exposed areas, or to have required use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. CONCLUSION OF LAW The criteria for an initial compensable evaluation for service-connected dermatophytosis of the bilateral feet are not shown to have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1 - 4.16, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805, 7806, 7813 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to an initial compensable evaluation for his service-connected dermatophytosis of the bilateral feet. As for the history of the disability in issue, the Veteran's service treatment records show that in 1949, he received multiple treatments for dermatophytosis of the feet. See 38 C.F.R. § 4.1 (2016). In October 2012, the RO granted service connection for dermatophytosis of the bilateral feet, evaluated as noncompensable, with an effective date for service connection of April 18, 2011. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under Diagnostic Code 7813, the disability should be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805); or dermatitis (Diagnostic Code 7806); depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2016). Under 38 C.F.R. § 4.118, DC 7801, scars other than head, face, or neck, that are deep and nonlinear warrant the assignment of a 10 percent rating for an area or areas exceeding 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.). Note (1) A superficial scar is one not associated with underlying soft tissue damage. Under DC 7802, burn scars or scars due to other causes not of the head, face or neck, that are superficial and nonlinear warrant a 10 percent evaluation when they cover an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2016). Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1) of DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (3) states that a scar rated under DC 7802 may receive an evaluation under DC 7804 when appropriate. Under DC 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802 and 7804: Evaluate any disabling effects not considered in a rating provided under diagnostic codes 7800 - 7804 under an appropriate diagnostic code. Under Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected; and, no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted 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 are 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. In March 2016 the United States Court of Appeals for Veterans Claims (Court) issued a decision in Johnson v. McDonald, 27 Vet. App. 497 (2016), which addresses VA's interpretation of 38 C.F.R. § 4.118, Diagnostic Code 7806. The Court found that the language of Diagnostic Code 7806 provides for a 60 percent rating for constant or near constant use of corticosteroids, whether or not such steroids were applied topically or through an oral medication. The Court's determination in Johnson is under appeal and has not been finally adjudicated. A stay has been put in place pending final resolution of this matter; however, the stay does not extend to cases that have been advanced on the docket, as this one has. As such, the holding in Johnson applies, notwithstanding the pending appeal and stay. A VA skin diseases disability benefits questionnaire (DBQ), dated in August 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The DBQ notes the following: the Veteran reported ongoing symptoms since his service, with daily use of talc powder, and frequent sock and shoe changes. He reported flare-ups with itching and moderate hot pain in the affected areas. He stated that he had not sought treatment for his condition in the past 12 years. He further stated that his preventative care keeps him from having a visible skin condition, but that if he does not perform foot care, his skin condition returns. On examination, he did not have a skin condition. There were no systemic manifestations due to skin disease. He had used talc powder for six weeks or more, but not constantly, in the past 12 months. His condition had not caused any scarring or disfigurement of the head, face, or neck. The diagnosis was "dermatitis or eczema." The total body area affected was "none," and the total exposed area affected was "none." There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his diagnosis. There was no impact on his ability to work. VA progress notes show that the Veteran's medical history includes diabetes mellitus. A number of findings associated with treatment for this condition show that he was noted not to have any lesions or rashes, and that his feet were normal. See e.g., VA progress notes, dated in July 2009, October 2010, November 2015, February and June of 2016. A statement from the Veteran's spouse, received in January 2012, shows that she states that the Veteran had a severe tropical fungus of both feet upon separation from service in 1955. They had to wash his shoes with formaldehyde, soak his feet, and he had layers of skin coming off of his feet, with blackened toenails, for months. The Board finds that the criteria for an initial compensable evaluation have not been met. There is no evidence of record indicating that at least five percent of the Veteran's body or at least five percent of exposed areas were affected by his service-connected condition. The only finding on this issue is found in the August 2012 VA DBQ, which shows that the examiner specifically noted that less than five percent of the Veteran's entire body was affected by tinea pedis and zero percent of exposed areas were affected. Further, while the Veteran was noted to use talc powder at some points during the period on appeal, there is no evidence to show that he took intermittent systemic therapy or immunosuppressive drugs for treatment of his skin disorder. In addition, there is no evidence to show this disability has been productive of deep and nonlinear scars covering an area or areas exceeding 6 square inches (39 sq. cm), superficial and nonlinear scars covering an area or areas of at least 144 square inches (929 sq. cm.), or one or two scars that are unstable or painful. There is no evidence to show that his foot condition has caused any disabling effects not considered under Diagnostic Codes 7800 - 7804. The Board acknowledges the Veteran's reports of symptoms of dermatophytosis of the bilateral feet. The examination considered those reported symptoms in making his/her findings and the Board has considered that evidence in determining the appropriate rating. The Board therefore finds that a compensable rating is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7806, 7813. The Board has considered the Veteran's statements that he should be entitled to an initial increased evaluation for his dermatophytosis of the feet. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his skin symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased initial evaluation. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability in issue is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examination also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), as appropriate, and whether the Veteran is entitled to an increased rating for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the claimed disability such that an initial compensable evaluation is warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for an extraschedular rating is appropriate. This requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. The rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the types reported by the Veteran and by medical professionals on clinical evaluation. Significantly, the rating criteria include higher ratings where symptomatology of the appropriate degree is demonstrated. The Veteran's testimony has been discussed. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose. The RO clearly based its evaluation on the appropriate rating criteria. As such, referral for extraschedular consideration is not warranted. With respect to the second Thun element, the Veteran does not contend, and the evidence of record does not suggest, that the disability in issue has resulted in any hospitalization or time lost from work during the time period on appeal, nor are there any medical findings of record to support an extraschedular referral. Of particular note, the August 2012 VA examiner concluded that his skin disorder does not impact his ability to work. The Board finds, therefore, that the Veteran's service-connected disability in issue is not shown to have resulted in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected conditions. In addition, this issue has not been argued by the Veteran, nor is it reasonably raised by the record. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). ORDER An initial compensable evaluation for service-connected dermatophytosis of the bilateral feet is denied. REMAND The Veteran contends that he suffers from diabetes, ischemic heart disease, and peripheral neuropathy of the bilateral lower extremities, as a result of his exposure to herbicides, chemicals, and/or radiation during service. The Veteran has stated that he served in Guam from 1948-1950, at the Dugway Proving Grounds (DPG) in Utah from 1950-1951, and in Korea from 1951-1953. See Veteran's February 2012 statement. He asserts that he was exposed to radiation while at DPG, and to herbicides and chemicals while stationed on Guam, at DPG, and in Korea. A November 2011 response from the National Personnel Records Center (NPRC) stated that the Veteran's personnel records are presumed to have been lost in a 1973 fire at the NPRC facility located in St. Louis, Missouri. VA is therefore under a heightened obligation to assist the Veteran in the development of his claim. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). To the extent that the Veteran's claims are based on exposure to herbicides and chemicals, in March 2013, the Board remanded these claims, and directed that the Defense Technical Information Center (DTIC) be contacted in an attempt to verify the Veteran's involvement in chemical, biological, and radiological testing and exposure to smoke at Dugway Proving Ground. The Board also directed that Dugway Proving Ground (DPG), Dugway, Utah, be contacted, in an attempt to verify the Veteran's involvement in chemical, biological, and radiological testing at DPG. Negative responses from DPG are of record. In addition, in May 2016, the DPRIS (Defense Personnel Records Information Retrieval System) stated: For information concerning [the Veteran's] being exposed to toxins or hazardous chemicals, he may wish to write to the Armed Forces Pest Management Board, WRAMC, Forest Glen Annex, Building 172, 6900 Georgia Avenue, NW, Washington, DC 20307, or the US Army Medical Department, Office of the Surgeon General, Attention: DASGZXA, Suite 672, 5109 Leesburg Pike, Falls Church, Virginia 22041. There is no indication that either the RO or the Veteran contacted either the Armed Forces Pest Management Board, or the US Army Medical Department, Office of the Surgeon General. Under the circumstances, an attempt should be made to verify the Veteran's claims of exposure with these Federal agencies. Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) ("VA is statutorily required to obtain all of a veteran's relevant service medical records, not simply those which it can most conveniently locate"); Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12- 95, 60 Fed. Reg. 43,186 (1995). To the extent that the claims include assertions of exposure to radiation at DPG, the evidence of record does not currently establish that the Veteran is a "radiation-exposed veteran." 38 C.F.R. § 3.309(d)(3)(i). While he reports that he served at DPG for a period of time, there is currently no evidence to show that he participated in a radiation-risk activity. 38 C.F.R. § 3.309 (d)(3)(ii). Furthermore, none of the claimed conditions are "radiogenic" diseases. 38 C.F.R. § 3.311 (b)(2). However, a March 2014 VA opinion shows that the examiner linked the Veteran's claimed conditions, at least in part, due to exposure to ionizing radiation during service (this opinion suffers from a number of defects which need not be discussed at this time). The claims are therefore subject to the provisions at 38 C.F.R. § 3.311. See 38 C.F.R. § 3.311(b)(4). A remand is required, as it does not appear that the correct procedures have been completed in order to obtain a dose estimate. The Board first notes that this claim does not involve U.S. atmospheric nuclear weapons tests, occupation of Hiroshima or Nagasaki, or FPOW interment in Japan. Therefore, it falls outside the scope of DTRA's Nuclear Test Personnel Review (NTPR) program. In such a case, and notwithstanding the fact that the Veteran's personnel records are presumed to have been lost, and that it appears there are no DPG records available involving the Veteran, for a claim based on exposure to ionizing radiation by reason of the nature of military duties, the proper procedure is to prepare a separate Personnel Information Exchange System (PIES) request to obtain a copy of the record of occupational exposure to ionizing radiation from the Official Military Personnel File (OMPF), service treatment records (STRs), or any other record that contains radiation exposure information. See VA Adjudication Procedure Manual, M21-1MR, Part IV.ii.1.C.3.e.; see also 38 C.F.R. § 3.311(a)(2)(iii). If evidence of occupational radiation exposure, such as a DD Form 1141, cannot be found in the Veteran's records or obtained through PIES, a written request for the record should be prepared, together with the identifying data as required by M21-1, Part IV, Subpart ii, 1.C.3.b, and sent to the appropriate service department point of contact listed in M21-1, Part IV.ii.1.C.3.f (in this case, the U.S. ARMY Dosimetry Center, ATTN: AMSAM-TMD-SD (Courtney Smith), Building 5417, Redstone Arsenal, AL 35898). Thereafter, the claim is to be referred to Compensation Service, Policy Staff (211B), for referral to the USH, who is responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. See M21-1, Part IV.ii.1.C.4.b., and 5.a. The Board notes that any exposure higher than zero triggers a referral to the Under Secretary. Wandel v. West, 11 Vet. App. 200, 205 (1998); see also M21-1, Part IV.ii.1.C.4.(e) and (f). Therefore, under the circumstances, if the Veteran is determined to have been exposed to radiation in service, or, if the Veteran's claimed exposure to exposure to herbicides and/or chemicals is verified, a medical opinion should be obtained addressing whether any such in-service herbicide, chemical, or radiation exposure (as appropriate) is related to a claimed medical condition. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In summary, it does not appear that the relevant VBA Manual M21-1 provisions have been complied with for claims based on exposure to radiation. It also appears that other required development as to claimed exposure to herbicides and chemicals has not yet been completed. On remand, the development mandated by VBA Manual M21-1 for claims based on exposure to radiation, and the other required development discussed above, should be completed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Armed Forces Pest Management Board, WRAMC, Forest Glen Annex, Building 172, 6900 Georgia Avenue, NW, Washington, DC 20307, and the US Army Medical Department, Office of the Surgeon General, Attention: DASGZXA, Suite 672, 5109 Leesburg Pike, Falls Church, Virginia 22041, and attempt to verify the Veteran's assertions of exposure to herbicides and hazardous chemicals during service. 2. Complete all development required in order to obtain any available records concerning the Veteran's reported in-service exposure to radiation from the appropriate source, followed by an attempt to obtain a dose estimate, as required by VA Adjudication Procedure Manual, M21-1MR, Part IV.ii.1.C.3.(e) and (f), and 38 C.F.R. § 3.311(a). 3. If, and only if, the Veteran is determined to have been exposed to radiation, toxic chemicals, or herbicides, in service, scheduled the Veteran for an appropriate examination(s) in order obtain a medical opinion regarding whether such verified exposure resulted in and of the claimed conditions. Request that the examiner review the claims folder and specifically note that such review has been accomplished. a) The examiner(s) should be asked to opine as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's in-service exposure to radiation, toxic chemicals, and/or herbicide exposure (as verified by the RO or the Appeals Management Center) (AMC), resulted in his diabetes mellitus, ischemic heart disease, and/or peripheral neuropathy of the bilateral lower extremities. b) The examiner(s) must explain the rationales for any opinions given. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 4. Once the above-requested development has been completed, the claims must be readjudicated. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, and be given an opportunity to respond to the SSOC. The case must then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs