Citation Nr: 1802273 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial rating higher than 10 percent for pseudofolliculitis barbae REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to October 2004. This case comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran's sleep apnea had onset in service or is otherwise related to any aspect of the Veteran's service. 2. The Veteran's pseudofolliculitis barbae is manifested by dermatitis or eczema covering 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; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 CFR § 3.303 (2017). 2. The criteria for an initial rating higher than 10 percent for pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7813-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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 duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran claims service connection for sleep apnea because he believes the condition had onset in service. Specifically, he argues that the symptoms that formed the basis for his diagnosis of sleep apnea in 2013 were also present while he was in service. During the pendency of this appeal the Veteran has been diagnosed with sleep apnea. Accordingly, the first element of service connection, a current disability, has been established. The question before the Board therefore is whether such condition is related to service. The service treatment records contain no complaints, history or findings consistent with sleep apnea. In the Reports of Medical History dated in March 2003, October 2003, and July 2004, the Veteran denied a history of difficulty breathing, feeling tired after sleeping, or frequent trouble sleeping. On examination in July 2004 the Veteran's nose, sinuses, lungs and chest were clinically evaluated as normal. The Veteran reported that his back problems interfered with his sleep. After service, a May 2013 polysonogram revealed clinical sleep apnea. Subsequent treatment records show ongoing treatment for sleep apnea, including with a BiPAP machine. At that time the Veteran reported a history of problems sleeping for 12 years. He stated that he had been snoring for several years, and his spouse complained that he was snoring and gasping during sleep. As sleep apnea was not shown in service or for many years thereafter, the question in this case becomes whether the current sleep apnea is etiologically related to service. There is positive and negative evidence of record. The evidence favoring the Veteran's claim for service connection for sleep apnea is a March 2014 medical statement from Dr. M.B. who reported the Veteran was being treated for sleep apnea at the VAMC sleep clinic. Dr. M.B. noted that the Veteran was diagnosed with severe sleep apnea in May 2013 and was being treated with a BiPAP (a variant of CPAP). Dr. M.B. stated that he had reviewed the Veteran's military records and lay statements in support of the claim, and determined that there was clear documentation from his military records that while on active duty he had trouble sleeping and was always fatigued. Dr. M.B. opined that it was more likely than not that the Veteran's sleep apnea, diagnosed in 2013, became manifest during active duty based on these military records and lay statements. The evidence against the claim consists of the medical opinion of a VA physician in March 2017. Following a review of the claims file, the physician opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's service, including difficulty sleeping during service. The physician explained that the Veteran's sleep apnea, initially diagnosed many years after service discharge, was a condition with specific established diagnostic criteria and was not diagnosed by the simple complaint of fatigue, tiredness, sleepiness or other nonspecific complaints. Sleep apnea was caused by the blockage of the upper airway by the tongue and soft palate. Citing to the medical literature, the physician noted that risk factors included a genetic predisposition, obesity, short large diameter neck, smoking, alcohol consumption, and the use of sedatives and tranquilizers. No event or exposure in military service caused sleep apnea. To the extent that the service treatment records documented a complaint of difficulty sleeping, it was associated with back pain, as opposed to sleep apnea. Concerning the medical opinion from Dr. M.B., the only medical opinion that supports the Veteran's contention that his sleep apnea manifested or had its onset during his military service, this opinion is competent evidence on the point, but the Board finds that it is less persuasive than the contrary medical evidence. Dr. M.B.'s opinion does not reflect consideration of the all of the facts, including the failure to acknowledge the Veteran's consistent denial of difficulty breathing or frequent trouble sleeping during service. Moreover, Dr. M.B.'s conclusion that there was clear documentation from the Veteran's military records that while on active duty he had trouble sleeping and was always fatigued, is unsupported by the service treatment records. In this regard, the only instance of any complaints associated with difficulty sleeping was associated with back problems. A conclusion that the Veteran's sleep apnea actually manifested as remotely in the past as during his military service requires a basis for concluding that the in-service symptoms indicate the presence of sleep apnea at that time. This opinion lacks probative value as the physician's conclusion is not supported by the other objective evidence of record or by adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the March 2017 VA medical opinion is more persuasive than the opinion provided by Dr. M.B. The VA physician provided a rationale that sufficiently supports its conclusion and is consistent with other evidence of record. It adequately explained that a diagnosis of sleep apnea required specific established diagnostic criteria and was not diagnosed by the simple complaint of fatigue, tiredness, sleepiness or other nonspecific complaints. Furthermore, the March 2017 opinion is supported by citation to pertinent medical literature. For the above reasons, the Board finds that the March 2017 VA medical examiner's rationale to be persuasive in finding that the observed in-service symptoms do not indicate a 50 percent or greater probability of the presence of sleep apnea at that time. The Board finds the March 2017 VA medical opinion to be more persuasive than Dr. M.B.'s opinion report. See Nieves-Rodriguez, supra; see also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). In support of his claim, the Veteran also submitted a July 2013 lay statement from his roommate in service from 1999 to 2001, A.C.B., describing recollection of the Veteran snoring loudly and frequently during service, experiencing frequent interruptions in his sleep causing him to become fatigued, and occasionally experiencing interruptions of his snoring and breathing during his sleep. The Veteran has also submitted the lay statement of his spouse, also dated July 2013, describing observed loud snoring and breathing interruptions during sleep shortly following service. The Board finds no reason to question the credibility of the lay accounts indicating that the Veteran snored loudly in service or soon thereafter, and may have been fatigued. In this regard, while the Veteran and other lay persons can competently report symptoms of snoring, any actual diagnosis of sleep apnea requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Neither the Veteran, his spouse nor A.C.B., have been shown to possess specialized training sufficient to render such an opinion. In this regard, the March 2017 VA physician in essence explained that the symptoms described during service are insufficient to establish a diagnosis of sleep apnea. The VA physician did not reject the testimony of the described symptoms; rather, he explained that the lay descriptions of symptoms featuring loud snoring and apneic events are insufficient to establish a diagnosis of sleep apnea. Significantly, the March 2017 VA medical opinion does not reject the lay testimony regarding in-service symptomatology, rather, the medical opinion characterizes the accepted description as depicting symptoms insufficient to indicate the presence of sleep apnea. Moreover, as previously noted, there is no contemporaneous support for these accounts of occurrences until many years after they allegedly took place. In fact, the contemporaneous evidence of record, the service treatment records and statements from the Veteran recorded during service, contradict lay statements rendered in 2013. In summary, the Board finds that the Veteran's sleep apnea did not have its onset in service, is not otherwise related to service. Accordingly, service connection for obstructive sleep apnea is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two ratings where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In November 2012, the RO granted the Veteran's claim for service connection for pseudofolliculitis barbae and assigned an initial rating of 10 percent, effective April 15, 2011, the date the claim was received. The Veteran appealed for a higher rating. The Veteran's service-connected pseudofolliculitis barbae is rated as 10 percent disabling, under 38 C.F.R. § 4.118, Diagnostic Code 7813. Diagnostic Code 7813 provides that dermatophytosis may be rated based on 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. Id. While acknowledging the criteria pertaining to Diagnostic Codes 7800-7805, the Board notes that the Veteran's service-connected pseudofolliculitis barbae has not been manifested by any scarring or disfigurement; rather, the Veteran's skin disability more closely approximates the ratings under the diagnostic code for dermatitis or eczema. Thus, Diagnostic Codes 7800, 7801, 7802, 7803, 7804 and 7805 are not applicable as to this issue. Diagnostic Code 7806 provides that where there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period a noncompensable evaluation 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 affected, or; intermittent systemic therapy such corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period, a 10 percent rating is assigned. Where there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is assigned. Where there is more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, a 60 percent rating is assigned. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). The U.S. Court of Appeals for Veterans Claims held that topical use of corticosteroids constituted systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The Federal Circuit, however, reversed the decision by the U.S. Court of Appeals for Veterans Claims. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the Secretary that the U.S. Court of Appeals for Veterans Claims erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" Id. The Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." Id. The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.'" Id.; see also Dorland's Illustrated Medical Dictionary 1865 (32d ed. 2012). Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. After reviewing the evidence of record, the Board finds that a rating in excess of 10 percent for pseudofolliculitis barbae is not warranted. In particular, the Veteran was afforded a VA examination in August 2012. The examiner noted that the Veteran's pseudofolliculitis barbae was not productive of scarring or disfigurement of the head, face or neck. There were no systemic manifestations. He denied any treatment for pseudofolliculitis barbae, to include oral or topical medications, in the preceding 12 months. Upon physical examination, the VA examiner noted that the affected area comprised less than 20 percent total body area and less than 20 percent exposed area. There was no scarring alopecia, alopecia areata, acne, or chloracne. The condition did not impact the Veteran's ability to work. VA treatment records in March 2013 and 2014 noted that the Veteran was being treated for pseudofolliculitis barbae with topical Clindamycin. On VA examination in January 2017, the examiner noted that the Veteran's pseudofolliculitis barbae was not productive of scarring or disfigurement of the head, face or neck. There were no systemic manifestations. He denied any treatment for pseudofolliculitis barbae, to include oral or topical medications, in the preceding 12 months. Upon physical examination, the VA examiner noted that the affected area comprised less than 5 percent total body area and at least 5 percent but less than 20 percent of exposed area. There was no scarring alopecia, alopecia areata, vitiligo, acne, or chloracne. The condition did not impact the Veteran's ability to work. Based on the foregoing, the Board finds that the Veteran's pseudofolliculitis barbae has remained generally consistent in its severity throughout the entire period of appeal. The Veteran did not have any scarring on his face, chest, or neck. Furthermore, the Veteran did not require the use of intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs. VA treatment records showed that the Veteran used topical medication in 2013 and 2014. It was not noted that the Veteran used medication at any other time. On the August 2012 VA examination, the VA examiner concluded that the Veteran's pseudofolliculitis barbae covered less than 20 percent total body area and about 20 percent exposed area. The January 2017 VA examiner concluded that the Veteran's pseudofolliculitis barbae covered less than 5 percent of his total body area and at least 5 percent but less than 20 percent of his exposed area. In order for the Veteran to be rated at the next higher, 30 percent, rating for his disability, he would have had to have dermatitis or eczema of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). It is clear that the Veteran's disability does not warrant a 30 percent evaluation or any higher evaluation. The Veteran's disability more closely approximates the 10 percent rating. Thus, the Board finds a rating in excess of 10 percent is not warranted for the Veteran's pseudofolliculitis barbae. 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 (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); Rice v. Shinseki, 22 Vet. App. 447 (2009). For the foregoing reasons, the Board finds that an initial rating of 10 percent for pseudofolliculitis barbae is not warranted throughout the appeal period. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and an initial rating in excess of 10 percent for pseudofolliculitis barbae is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for sleep apnea is denied. An initial rating higher than 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs