Citation Nr: 1805375	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  96-22 109	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

1. Entitlement to service connection for rectal disability, including pruritis ani and hemorrhoids, and to include as undiagnosed illness due to service in the Persian Gulf.

2. Entitlement to service connection for fatigue disorder, to include as undiagnosed illness due to service in the Persian Gulf.

3. Entitlement to service connection for bleeding gums, to include as undiagnosed illness due to service in the Persian Gulf.

4. Entitlement to service connection for hypertension, to include as undiagnosed illness due to service in the Persian Gulf.

5. Entitlement to service connection for bilateral shoulder disorder, claimed as pain in the shoulders, to include as undiagnosed illness due to service in the Persian Gulf.

6. Entitlement to service connection for colonic polyps, to include as undiagnosed illness due to service in the Persian Gulf.

7. Entitlement to service connection for an ulcer.

8. Entitlement to service connection for Lyme disease.

9. Entitlement to service connection for diabetes mellitus.

10. Entitlement to service connection for a heart condition.

11. Entitlement to service connection for an eye condition.

12. Entitlement to service connection for prostate cancer.

13. Entitlement to a higher rating for rhinitis evaluated as noncompensable for the time period prior to March 20, 2017 and 10 percent disabling thereafter.

14. Entitlement to a compensable evaluation for right knee disability, from March 3, 1973 to July 3, 1997 and in excess of 10 percent thereafter.

15. Entitlement to a compensable evaluation for left knee disability, from March 3, 1973 to July 3, 1997 and in excess of 10 percent thereafter.

16. Entitlement to a compensable evaluation for condyloma acuminata, since March 3, 1973.

17. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), rated at 30 percent prior to February 29, 2012, 70 percent from February 29, 2012 to July 14, 2016, and 100 percent thereafter.

18. Entitlement to an increased evaluation for bilateral ear hearing loss, currently rated at 10 percent.

19. Entitlement to an increased evaluation for a skin disorder, including adult acne, dermatitis and nevi, currently rated at 10 percent, and to include as aggravated by Persian Gulf service.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to March 1973, and from November 1990 to August 1991, the latter period of which included service in Southwest Asia from December 1990 to July 1991. He also had service in the New York Army National Guard (ARNG) between his two periods of active duty, and after the second period of active duty.

This appeal comes before the Board of Veterans' Appeals (Board) from several rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). The instant appeal has an extended procedural history that was most recently set out in a July 2016 Board remand.

In an October 2012 rating decision, the AOJ increased the Veteran's disability rating for his service-connected PTSD from 30 to 70 percent, effective February 29, 2012. In accordance with VA law, the Veteran has continued his appeal on this matter seeking the maximum available schedular rating. See A.B. v. Brown, 6 Vet. App. 35 (1993). A March 2014 AOJ rating decision granted TDIU effective February 29, 2012. Nevertheless, there remain greater benefits in increased ratings for already service-connected disabilities, including for the time period prior to February 29, 2012. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU is deemed a component of an increased rating claim). For administrative purposes, the Board has separately listed the issue of entitlement to TDIU for the time period prior to February 29, 2012.

Also in October 2012, the AOJ rating decision deemed left ear hearing loss disability as service-connected on the basis that the left ear disability met the requirements for paired extremities under 38 C.F.R. §§ 3.383 and 3.385. Thus, the issue has been revised on the title page to reflect bilateral hearing loss.

In a July 2016 Board decision, the Board remanded the matters of this appeal to the AOJ for further development. Specifically, the Board remanded the case to the AOJ to obtain records that the Veteran claimed to have submitted; to schedule the Veteran for several VA examinations, and to readjudicate the claims. These actions have been completed.

An October 2016 AOJ rating decision awarded a 100 percent rating for PTSD effective July 14, 2016.

This case consists primarily of documents within the Veterans Benefits Management System (VBMS), with some supplemental documentation from the Virtual VA system. Thus, any future consideration of the Veteran's case should take into account the existence of this electronic record. 

The DECISION below addresses the claims involving periodontal disease, Lyme Disease, condyloma acuminata, hearing loss and service-connected skin condition.  The remaining portion of the appeal is addressed in the REMAND portion of the decision below and those issues are REMANDED to the AOJ.


FINDINGS OF FACT

1. The competent and credible evidence of record establishes that the Veteran's current oral condition, claimed as bleeding gums, is due to periodontal disease which is not subject to service connection for compensation purposes.

2. The competent and credible evidence of record does not establish that the Veteran has any residuals from exposure to Lyme Disease.

3. The competent and credible evidence of record establishes that the Veteran's condyloma acuminata has involved a small area absent poor nourishment, ulceration, tenderness, painfulness, exfoliation, exudation or itching, or limitation of function of an affected part.

4. The Veteran's hearing has been manifested by no worse than Level XI hearing for the right ear and Level I hearing for the left ear.

5. During the period on appeal, the Veteran's service-connected skin condition has not been shown to be manifested by coverage of at least 5 percent of the entire body, or; requiring intermittent or systemic therapy such as corticosteroids or other immunosuppressive drugs.


CONCLUSIONS OF LAW

1. The criteria for service connection for a dental disability, claimed as bleeding gums, to include as undiagnosed illness due to service in the Persian Gulf, are not met. 38 U.S.C. §§ 1101, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.381, 4.150, 17.161 (2017).

2. The criteria for entitlement to service connection for Lyme Disease are not met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2017).

3. The criteria for a compensable evaluation for condyloma acuminata have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 7819 (1973-2017).

4. The criteria for an increased rating for bilateral hearing loss, currently rated as 10 percent, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (1991-2016).

5. The criteria for an increased rating for a skin disorder, including adult acne, dermatitis and nevi, currently rated at 10 percent, have not been met. 38 U.S.C. §§ 1155, 5103 (West 2016); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.14, 4.21, 4.118, Diagnostic Code 7899-7806 (1992-2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Advise and Assist

VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). With respect to the claims being decided on appeal, a review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). There has also been no argument raised as to the adequacy of VA examination.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records, VA treatment records, private treatment records, and VA examination reports. The Veteran was afforded numerous VA examinations for his pending claims, most recently in March 2017.

The Board remanded this case in July 2016 for further development and so that the Veteran could be afforded VA examinations and treatment records could be associated with the claims file. The AOJ also determined that the Veteran's reference to two boxes of evidence submitted to the AOJ was scanned in to VBMS in August 2012. With respect to the claims being decided on appeal, the Board finds substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

Relevant Laws and Regulations

Service Connection

Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). 

It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C. §§ 101(24), 106, 1131. 

ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e).

In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)).  In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324.

Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. 

Persian Gulf Related Claims

As noted above, 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. In addition, service connection may be established for a Persian Gulf veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 

The Veteran served in the Southwest Asia Theater of Operations after August 2, 1990, so during the Persian Gulf War. See 38 C.F.R. § 3.2(i). Therefore, he is a Persian Gulf veteran. Service connection may be established for a Persian Gulf veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71382 (Oct. 7, 2016).

A "qualifying chronic disability" includes: (A) an undiagnosed illness, or (B) a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).

Disabilities that have existed for six months or more, and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period, will be considered chronic. 38 C.F.R. § 3.317(a)(4). A qualifying chronic disability shall be considered service connected. 38 C.F.R. § 3.317(a)(6). Compensation shall not be paid for a qualifying chronic disability if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent Southwest Asia duty and the onset of the disability. 38 C.F.R. § 3.317(a)(7)(ii).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 C.F.R. § 3.317(b).

Additionally, for the chronic diseases listed in 38 C.F.R. § 3.309(a), if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in 38 U.S.C. § 1101 § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015).



Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). 

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Entitlement to service connection for bleeding gums, to include as undiagnosed illness due to service in the Persian Gulf.

The Veteran seeks to establish his entitlement to service connection for a disorder described as bleeding gums. His service treatment records are sparse related to dental treatment, or specific complaints of bleeding gums. In a June 1971 dental note, the treating dentist noted that the Veteran had "bleeding tendencies." The Veteran's 1973 separation examination did not note any dental or oral abnormalities.

Of note, the Veteran's service records, including service treatment records, indicate that he re-entered service in the National Guard in 1991, and underwent examinations in 1991, 1995, 1997, and 2002. The 1995, 1997 and 2002 examinations do not reference bleeding gums. To the contrary, the Veteran notes "no" related to tooth or gum problems. The dentists also do not note any abnormality during the Veteran's dental examinations.

There is only one reference to bleeding gums. From October to November 1995, the Veteran had complaints of bleeding gums. It was diagnosed as generalized periodontitis.

In March 2017, the Veteran was afforded a dental exam to address his claim of bleeding gums, along with a previously adjudicated claim for a temporomandibular joint (TMJ) condition. The VA examining dentist found that "the bleeding gums are not related from Gulf service; it is from poor oral hygiene and generalized periodontitis." The examiner reviewed all of the Veteran's dental records and noted that "whenever the patient comes in for the periodic cleaning and gum treatment that hygiene notes that the patient's hygiene is poor and there is much plaque buildup and inflammation leading to bleeding gums." In conclusion, the VA examining dentist found that "it is at least as likely as not that the patient's bleeding gum claim is not due to or aggravated by time in service."

Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered disabling conditions, and may be considered service-connected solely for establishing eligibility for VA outpatient dental treatment. See 38 C.F.R. §3.381(a). 

Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. See id.

Here, the Veteran has perfected his appeal under a theory of service connection for compensation benefits and has not argued that he is seeking VA treatment benefits. This appeal has been developed solely on the basis of entitlement to VA compensation based on a grant of service connection. Thus, the issue of entitlement to eligibility for VA dental treatment on an outpatient basis is not before the Board.

The weight of the medical evidence thus establishes that the Veteran's bleeding gums is due to periodontal disease, which is a known clinical diagnosis and, as such, is not subject to service connection under 38 U.S.C. § 1117. To the extent the Veteran argues otherwise, the Board places greater probative weight to the opinion of the VA dentist who has greater expertise and training than the Veteran to diagnose the cause of his bleeding gums.  

While service connection may be established for treatment purposes for replaceable missing teeth and periodontal disease, the regulations listed above clearly prohibit service connection for purposes of compensation where the disability involves periodontal disease. As this condition is recognized by the applicable regulations as a disability for which VA compensation may not be granted, the Veteran's claim is not warranted. See 38 C.F.R. 3.381 (periodontal disease is not a disability for compensation purposes). Consequently, there is no basis for entitlement to service connection for the Veteran's claimed bleeding gum disorder.

For all of the foregoing reasons, the Board finds that the claim for service connection for bleeding gums, to include as undiagnosed illness due to service in the Persian Gulf, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for Lyme Disease

The Veteran seeks service connection for Lyme Disease. The Veteran stated that the disease had been in his system for "a while" while serving as a reservist. He also stated that he only entered woodlands during periods of reserve training.

The Board concedes that the nature of military service, to include periods of training in woodland areas, would make it possible that the Veteran incurred a "service trauma," in the form of a tick bite. "Service trauma" is an injury or wound produced by an external physical force during a service member's performance of military duties. Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). See generally VAOPGPREC 4-2002 (May 14, 2002) (holding that residual disability from anthrax vaccination during INACDUTRA may be considered an injury within the meaning of 101(24)). 

In order to establish service connection, the remaining issues are whether the Veteran has a current disability and whether there is a causal relationship to his in-service injury.

First, in January 1997, the Veteran tested "equivocal" positive for Lyme Disease. The Veteran was given TCN, as was customary in the early days of Lyme testing in the early 1990s. The treating physician noted the presence of antibodies, and provided an "equivocal diagnosis of Lyme. No further treatment necessary." The equivocal diagnosis was based on the Enzyme-linked immunosorbent assay (ELISA) test of 1:128, which is considered to be equivocal because negative Lyme disease results equate with IFA titers <1:128 while positive results compare with titers > or = 1:256. See https://www.lymedisease.org/lyme-basics/lyme-disease/diagnosis/

Subsequent laboratory findings revealed there was no Lyme disease antibody detected. In November 1998, the Veteran's ELISA results remained constant at 1:128. In April 1999, the Veteran's ELISA results dropped to <1:128. There was no report of symptoms or physical findings of inflammatory arthritis identified in the STRs or follow-on treatment. 

While the Veteran is competent to report symptoms of Lyme disease, he is not competent to make a diagnosis of Lyme disease as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to diagnose himself with Lyme disease or any residuals from exposure to Lyme Disease.

A review of the post-service medical evidence of record is silent for a current diagnosis of Lyme disease or treatment for residuals from his 1999 diagnosis of Lyme Disease. In fact, in February 2008, the Veteran had his blood tested with no evidence of Lyme titers. Since 2008, the Veteran has no received treatment for Lyme Disease or any residuals thereof.

For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no evidence of record showing the Veteran to have a current confirmed diagnosis of Lyme disease, nor any treatment for residuals of his previous Lyme Disease. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

For all of the foregoing reasons, the Board finds that the claim for service connection for Lyme Disease must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to a compensable evaluation for condyloma acuminata, since March 3, 1973.

As found by the Board in the most recent remand, the Veteran's claim for a compensable rating for condyloma acuminata involves an initial rating extending to March 3, 1973. There is no specific rating criteria for condyloma acuminata, which is a genital wart medical described as soft, moist, pink or flesh-colored bumps. See https://medlineplus.gov/genitalwarts.html. This disorder is most akin to a benign skin growth.

The criteria for evaluating skin disorders have been revised several times during the appeal period. 

The criteria in effect on March 3, 1973 evaluated benign new skin growths under DC 7819, either as scars, disfigurement or eczema. 38 C.F.R. § 4.118, DC 7819 (1972). In pertinent part, a 10 percent rating was warranted for superficial scar, poorly nourished, with repeated ulcerations (DC 7803), or a superficial scar that was tender and painful on objective demonstration (DC 7804). A rating could also be provided under DC 7805 for a scar producing limitation of part affected. The criteria for eczema under DC 7806 provided for a noncompensable rating for slight; if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating was warranted for slight; if involving an exposed surface or extensive area. A 30 percent rating was warranted for exudation or itching constant, extensive lesions, or marked disfigurement. A maximum 50 percent rating was warranted for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant.

Pertinent to this claim, relevant revisions were made to the evaluation of skin criteria effective August 30, 2002. 67 Fed. Reg. 49590 (July 31, 2002). Under DC 7819, benign skin neoplasms are rated as disfigurement of the head, face or neck under DC 7800, scars under DCs 7801-05, or impairment of function. 

DC 7801 governs scars, other than the head, face, or neck, that are deep or cause limited motion. It provides a 10 percent evaluation when the area or areas exceed six square inches (39 square centimeters). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, DC 7801. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1), (2). 

Under DC 7802, which governs scars other than the head, face, or neck, that are superficial and do not cause limited motion, a 10 percent evaluation is assignable for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 of this part. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2). 

Under DC 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (1), (2). 

Under DC 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804. A superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7804, Note (1), (2). 

Under DC 7805, other types of scars will be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805.

The Board observes that VA issued a clarifying final rule for evaluating scar disabilities at 73 Fed. Reg. 54708 (Sept. 23, 2008). However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria which he has not done here. The Board, therefore, has no authority to consider these revisions in deciding this claim.

Historically, a November 1973 rating decision awarded service connection for condyloma acuminata and assigned a noncompensable rating. An examination in September 1973 noted the presence of penile warts which were mostly gone except for a few indistinct warts which, by October 1973, were described as a small papules which may be remains of inflammation from prescribed medication. There was no evidence of condyloma acuminata on VA examination in December 1982, and there has been no medical description of this disorder since.  

Based on the above, the Board finds that the criteria for a compensable rating for condyloma acuminata have not been met for any time during the appeal period. In this respect, at worse, the Veteran manifested condyloma acuminata involving a very small area which had no characteristics of poor nourishment, ulceration, tenderness, painfulness, exfoliation, exudation or itching, disfigurement, or repugnance, or resulted in systemic or nervous manifestations or limitation of function of an affected part. Notably, he has not manifested any condyloma acuminata residuals since December 1982. The Veteran himself has not described the characteristics listed in the schedular criteria for any version in effect during the appeal period. As such, the preponderance of the lay and medical evidence weighs against a compensable rating for condyloma acuminata for any time during the appeal period. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b).

Entitlement to an increased evaluation for right and left ear hearing loss, currently rated at 10 percent.

The Veteran appeals the initial rating assigned for his service-connected bilateral hearing loss since August 30, 1991. The Board notes that the applicable criteria are those revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). 

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. 
To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).
An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 

The Veteran asserts that his service-connected hearing loss is worse than its currently assigned rating, and that it warrants a higher rating. He is competent to report a decrease in hearing acuity and his statements are credible. The competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana, 24 Vet. App. 428 (2011). The Veteran in this case is not competent to address the extent of his hearing loss as measurement of the severity of hearing loss involves using specialized equipment and interpreting audiological test results. The record does not show that the Veteran possesses the training or experience needed to accomplish these actions. 

A July 1991 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
70
65
70
75
68.75
N/A
LEFT
15
10
5
20
12.5
N/A

A March 1994 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
75
75
75+
80
76
0
LEFT
15
20
20
35
22
96

A March 2000 audiology examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
90
85
85
90
87.5
12
LEFT
15
20
20
40
23.75
100

A March 2012 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
105
90
105+
105+
101
0
LEFT
20
20
40
45
31
100

A September 2016 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
105+
105+
105+
105+
105
0
LEFT
45
45
55
75
55
94

These examinations indicate that the Veteran suffered hearing loss. Using Table VI, 38 C.F.R. § 4.85 (effective 1991), the respective numeric designations for the right and left ears are XI and I, respectively. Where hearing loss is at Level XI in the poorer ear and Level I in the better ear, a 10% compensable rating is assigned under Table VII.  The Veteran manifests an exceptional hearing loss pattern in the right ear, but the results do not change when evaluating under Table VIA.

The review of the two latest examinations, while showing some discrepancies between them, results in the same conclusion. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an increased rating for bilateral hearing loss disability. 
The Board acknowledges the Veteran's complaints regarding the impact of hearing loss on his daily life, including "being at a disadvantage for any sound coming to his right side," frustration, difficulty understanding and communicating with others, having to rely on lip reading, and misunderstanding others. These types of functional limitations are contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). The Board acknowledges the Veteran's assertions that his hearing loss is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible testimony in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for a compensable evaluation have been met. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. As noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann. Accordingly, the rating assigned for the Veteran's bilateral hearing loss disability accurately reflects the degree of his service-connected hearing impairment. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Board is very sympathetic to the Veteran. However, to the extent that VA's current rating schedule ranges from I to XI, which requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition).  There is no statutory means to assign a rating beyond XI for the right ear, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155 ... or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252(b). That provision squarely precludes the Veterans Court from determining whether the schedule . . . substantively violates statutory constraints."). The Veteran may always advance a rating claim if his hearing should decrease in the future.

Entitlement to an increased evaluation for a skin disorder, including adult acne, dermatitis and nevi, currently rated at 10 percent, and to include as aggravated by Persian Gulf service.

The Veteran filed his current claim for an increased rating for his skin disorder (other than condyloma acuminata) in August 1992. At the beginning of the appeal period, exfoliative dermatitis under DC 7817 was evaluated as eczema under DC 7806. The criteria for eczema under DC 7806 provided for a noncompensable rating for slight; if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating was warranted for slight; if involving an exposed surface or extensive area. A 30 percent rating was warranted for exudation or itching constant, extensive lesions, or marked disfigurement. A maximum 50 percent rating was warranted for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant.  

The relevant criteria were revised effective August 30, 2002. 67 Fed. Reg. 49596 (2002). Under DC 7806, a 10 percent rating for dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The maximum 60 percent rating is warranted when there is more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.

A separate diagnostic code was added for acne. Under DC 7828, the minimal noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts, of any extent. 38 C.F.R. § 4.118, DC 7828. A 10 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. Id. The maximum 30 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Id.

Additionally, consideration may be given to rating acne as disfigurement of the head, face or neck under DC 7800, or scars under DCs 7801-05 if the predominant aspect of disability.

DC 7801 governs scars, other than the head, face, or neck, that are deep or cause limited motion. It provides a 10 percent evaluation when the area or areas exceed six square inches (39 square centimeters). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, DC 7801. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1), (2). 

Under DC 7802, which governs scars other than the head, face, or neck, that are superficial and do not cause limited motion, a 10 percent evaluation is assignable for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 of this part. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2). 

Under DC 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (1), (2). 

Under DC 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804. A superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7804, Note (1), (2). 

Under DC 7805, other types of scars will be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805.

The Board observes that VA issued a clarifying final rule for evaluating scar disabilities at 73 Fed. Reg. 54708 (Sept. 23, 2008). However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria which he has not done here. The Board, therefore, has no authority to consider these revisions in deciding this claim.

The Veteran was awarded service connection for a skin condition, diagnosed as adult acne, dermatitis, and veni. The Veteran's skin conditions are currently rated under Diagnostic Code 7806 for evaluating dermatitis. The Veteran contends that an increased rating is warranted for his service-connected skin condition as it is more severe than contemplated by the current 10 percent evaluation, to include that the condition was aggravated by Persian Gulf service. As discussed below, the evidence does not support the Veteran's contention regarding an increased rating.

The Veteran's VA treatment records indicate treatment for skin conditions for the period from 1992 to 2017. The treatment history is detailed below:

In September 1992, the Veteran sought treatment for a rash. The treating physician noted that the Veteran had a "rash on upper back, back of neck, and back...this lasted 2 weeks and was treated with a systemic antibiotic and a topical cream. No recurrence since." The physician made clinical findings of lesions on back of brownish spots up to 3mm; pinkish papules and pustules, midback from upper lumbar to base of neck, and approximately 6 on either side of the midline of the back. 

In August 1996, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had an "eruption appeared on lower leg. Lesion on back and neck have disappeared. Scaly plaque of both lower legs pigmented lesion of right lower abdomen. Dermatitis of lower legs."

In February 2000, the Veteran sought treatment for a different condition. The treating physician noted that the Veteran had a "skin dryness and pruritus."

In March 2000, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had "complaints of spot on right side of lower abdomen for 5-10 years." The physician made clinical findings of annular light brown macule with 3 mm superimposed hyperpigmented macules, and adjacent hypertrophic scar of the right lower abdomen.

In February 2003, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had "complaints of pruritic dry skin on sides of legs and thorax and hypopigmented area on left arm." The physician made clinical findings of a 3cm hypopig plaque on lower upper extremity.

In March 2003, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had a "healing rash to lower extremities."

In May 2003, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had "hypopigmented lesions on left arm, and itchy rash on legs."

In June 2003, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had "eczematous dermatitis on the back and legs...asymptomatic hypopigmented patch on left arm (Veteran states this area has disappeared)."

In September 2003, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran's "left medial arm is clear; legs have xerosis with few excoriations; low back has hyperpigmented patch with no scale; and arms and trunk have xerosis."

In March 2004, the Veteran underwent a VA examination for his claimed skin conditions. The examiner noted that the Veteran's "lower legs have diffuse scaling with erythematous patches with scales." See VA Examination, dated March 24, 2004.

In March 2009, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had a "new skin rash x (for) 2-3 months. Patient reports rash on chest started as small erythematous plaque that has slowly been expanding, and now he has two. They are not itchy or painful. No suspicious lesions." The physician made clinical findings of "left cutaneous lip with 1.5cm medium brown plaque with hair; a few stuck-on hyperkeratotic papules on abdomen, chest; left chest, superior and medial to areola, with 6cm erythematous, anular rash; and left upper chest with 1cm erythematous anular plaque, minimal scale."

In July 2009, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had dry skin of the back and abdomen, as well as dry skin of the lower legs with slight skin thickening.

In April 2016, the Veteran sought treatment for a skin condition. The treating physician noted that the Veteran had "no rashes noted" on physical exam.

In September 2016, the Veteran sought treatment for a skin condition. The treating physician made clinical findings of "generalized xerosis, trunk otherwise clear; b/l (bilateral) legs with varicosities and xerosis; face and scalp clear; and multiple scattered stuck on brown papules and uniform brown macules."

In March 2017, a VA examination was conducted to evaluate the extent of the Veteran's skin conditions. The examiner noted that the Veteran was "essentially negative except for some dry skin on the lower legs and a few moles on the face and back." The physical examination determined that "at the present time, he does not have any acne, it has resolved. He also has no black spots on his feet, face or stomach...the only thing I can see on his skin is some dry skin...on his lower legs (and) a few moles on his back and his face. He is using some dry skin cream..." The examiner also found the Veteran to be "negative for acne." The physical examination also determined that the skin condition covered 2% of the total exposed area and the total body area "with the dry skin of the lower legs could be 10%."  

After review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected skin disorder. The lay and medical evidence demonstrates recurrent episodes of patches of dry, pruritic skin with xerosis and excoriation involving various parts of the body over time. There is no lay or medical description of "extensive'lesions, marked disfigurement, exudation, constant itching, ulceration, crusting, extensive exfoliation, systemic or nervous manifestations, involvement of 20 percent or more of entire body or exposed areas. 

Additionally, clinical records show that the Veteran treats the condition with routine use of a topical cream that is not a corticosteroid or immunosuppressive drug. For years, the Veteran has been prescribed two topical ointments (camphor and hydrofor) to ease his dry skin. These topical ointments have been listed on the Veteran's active prescriptions since 2009. Since that time, there has only been one prescription for a corticosteroid. In June 2010, the Veteran was prescribed "hydrocortizone valerate 0.2% cream, topical.  Apply small amount externally to affected areas daily as needed for rash." This prescription was listed as active until March 2011, when the condition resolved itself. Since March 2011, the Veteran has only been prescribed topical creams to address dry skin.

Although the Veteran's treatment for a rash in 2010 required daily application of topical corticosteroids, since the application only applied to 5 to 20 percent of the skin, that treatment regimen will not meet the definition of systemic treatment as it only affects the areas treated with the topical steroids. Johnson v. Shulkin, No. 16-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. July 14, 2017).  

The Board also finds that an increased rating is not warranted based on the amount of exposed area or total skin area affected by the service-connected skin condition. In a March 2017 VA examination, the examiner noted that the Veteran was "essentially negative except for some dry skin on the lower legs and a few moles on the face and back." The physical examination revealed that the skin condition covered 2% of the total exposed area and the total body area "with the dry skin of the lower legs could be 10%." This is insufficient for an increased rating.

These findings are contemplated by the currently assigned 10 percent rating. Physical examination shows that the service-connected skin disorder primarily affects the Veteran's legs. The March 2017 examination indicated that the Veteran was "essentially negative except for some dry skin on the lower legs and a few moles on the face and back." Even with consideration of the Veteran's statements regarding the skin condition, including his characterization of the condition as intermittent, it is clear that the condition does not most nearly affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected as required for a 30 percent rating.

Additionally, the Veteran's treatment records do not indicate any scar which would qualify for compensation under DCs 7801-05. The 2017 VA examiner noted that the Veteran was "essentially negative" for other skin conditions and did not note any scarring. The Board finds that consideration of DCs 7801-05 is not supported by the evidence of record.

In summary, the record fails to show that the Veteran's service-connected skin disorder meets the criteria for a higher rating for any time during the appeal period. As such, his claim for an increased rating cannot be granted.



ORDER

Entitlement to service connection for bleeding gums, to include as undiagnosed illness due to service in the Persian Gulf, is denied.

Entitlement to service connection for Lyme Disease is denied.

Entitlement to a compensable evaluation for condyloma acuminata, since March 3, 1973, is denied.

Entitlement to an increased evaluation for bilateral hearing loss, currently rated at 10 percent, is denied.

Entitlement to an increased evaluation for a skin disorder, including adult acne, dermatitis and nevi, currently rated at 10 percent, is denied.


REMAND

Unfortunately, the remaining claims on appeal must be remanded.  While the Board regrets the additional delay in this regard, it is necessary to ensure a complete record. The Board finds that several of the claims require additional development.  

Rectal disability

An April 2009 VA examiner provided opinion that the Veteran first manifested hemorrhoids by colonoscopy in 1997 and, based in part on this finding, found that his hemorrhoids were not at least as likely as not due to aggravated during active service. However, an October 1993 letter from Dr. Rand (received in November 1993) describes the Veteran as manifesting small internal hemorrhoids by anoscopy performed in February 1990. Thus, the Veteran manifested hemorrhoids prior to his period of active service from December 1990 to July 1991. This examination report, therefore, must be returned as inadequate for rating purposes as it is based on an inaccurate factual premise.

Rhinitis disability

In a rating decision dated April 24, 2017, the AOJ awarded a 10 percent rating for rhinitis effective March 20, 2017. This issue must be remanded for the issuance of a Supplemental Statement of the Case.

Right and left knee disabilities

The Veteran was afforded VA examination to determine the nature and severity of his service-connected right and left knees in March 2017. For both knees, the examiner indicated she was unable to assess the Veteran's functional ability during flares as the Veteran was not undergoing a flare at the time of examination. This examination must be returned as inadequate for rating purposes based on the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

PTSD

The Veteran was afforded VA examination to determine the nature and severity of his service-connected PTSD in October 2016. This examiner provided opinion that the Veteran's service-connected PTSD and major depressive disorder resulted in total occupational and social impairment. The examiner referenced findings prior to the examination to support his conclusion, but did not specify any particular date or time period when the Veteran's PTSD increased in severity. The AOJ assigned an effective date of July 14, 2016 for the increased compensation apparently based on "a claim for increased evaluation that was received on July 14, 2016." See AOJ rating decision dated October 26, 2016. This appeal, however, has been pending prior to July 14, 2016 and there is no reasons and bases provided regarding the nature and severity of PTSD which supports the effective date for the award assigned. The Board finds that retrospective opinion as to when the Veteran's PTSD increased in severity to the total occupational and social impairment level. See Chotta v. Peake, 22 Vet. App. 80 (2008) (parameters of the VA's duty to assist in determining the level of disability for purposes of awarding a rating after the Secretary has revised a decision denying service connection may include requiring the VA to develop medical evidence through a retrospective medical evaluation).

Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. In this case, there are several conditions which do not have sufficient competent medical evidence to properly adjudicate the claim.

Accordingly, the case is REMANDED for the following action:

1. Obtain the most recent VA treatment facility records, then associate these with the VBMS electronic file.

2. Request that the Veteran provide specific information regarding the claims for entitlement for fatigue disorder, colonic polyps, ulcer, bilateral shoulder pain, diabetes mellitis, heart condition, eye condition, and prostate cancer. The Veteran should be asked to provide specific information related to symptomology, dates of onset, treatment sought, and any other information that would assist the VA in properly adjudicating his claim. In the event that the Veteran identifies treatment records or other evidence not previously associated with the file, that information must be obtained and associated with the file.

3.  Upon receipt of the above-referenced documentation and all additional materials, schedule the Veteran for a series of additional VA Compensation and Pension examinations, the details of which are set forth below. The claims file must be made available to the examiner, and a notation that this record review took place should be included in the evaluation report. The appropriate examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history.

For all examinations provided, the VBMS and "Virtual VA" claims folder must be reviewed by the examiner in conjunction with the examination, and the examiner must indicate that this review occurred. Moreover, all indicated tests and studies should be performed and all findings should be set forth in detail.

A. Examination and opinion should be obtained to determine whether the Veteran has a current diagnosis of the claimed hypertension and/or a heart condition.  

(a) Obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed hypertension and heart condition;

(b) Identify the criteria for diagnosing hypertension, and provide opinion as to whether the Veteran manifests hypertension and/or a heart condition.  If hypertension and/or a heart condition is found, the examiner should also address the question of whether it is at least as likely as not. i.e., at least a 50 percent probability or greater, that the Veteran's hypertension and/or heart condition had its onset in service or within one year of service discharge or is otherwise causally related to his periods of active duty from November 1970 to March 1973, or from November 1990 to August 1991. In providing an opinion, the examiner should address the Veteran's elevated blood pressure readings documented during his period of active duty and address whether or not they are initial manifestations of his subsequently diagnosed hypertension. If the Veteran's hypertension cannot be regarded as having been related to service, the examiner should specifically indicate so.

The examiner is asked to carefully consider the objective medical findings in the service treatment records and VA treatment records.  Regarding the claimed hypertension, the examiner is also asked to specifically address the March 2009 VA Examination which found that "a diagnosis of hypertension cannot be made." The examiner is also advised that the Veteran is competent to report his symptoms, and that his assertions of continuity of hypertension since service must be considered in formulating the requested opinion. He/she should also set forth medical reasons for accepting or rejecting the Veteran's reports (lay observations) concerning any hypertension since service.
 
The examiner should provide a detailed opinion rationale and explanation for all conclusions reached.  

B. Schedule the Veteran for appropriate VA examination(s) with an examiner of appropriate expertise to determine the nature and etiology of his gastrointestinal disorders, to include complaints of an ulcer, diverticulitis, and colonic polyp, as well as pruritis ani and hemorrhoids. The examiner(s) should elicit from the Veteran a complete history of his gastrointestinal disorders, to include diverticulitis, diverticulosis and colonic polyp. 

Gastrointestinal Disorder

As to the Veteran's claimed gastrointestinal disorder, to include ulcer, diverticulitis, and colonic polyp, following a review of the electronic claims files, the Veteran's contentions, and examination of the Veteran, the examiner should:

(a) Obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed gastrointestinal disorders including ulcer, diverticulitis, and colonic polyp;

(b) Identify all gastrointestinal disorders diagnosed in the record and or shown on examination;

(c) For each gastrointestinal disorder identified, provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that the disorder had onset during or is otherwise related to any incident of the Veteran's active military service from November 1970 to March 1973, or from November 1990 to August 1991.

(d) Whether the Veteran manifests a functional gastrointestinal disorder (a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract)?

**Please also indicate whether any conditions of symptoms cannot be diagnosed and whether they are due to service in the Persian Gulf.

Rectal Condition

As to the Veteran's claimed rectal disorder, to include pruritis ani and hemorrhoids, following a review of the electronic claims files, the Veteran's contentions, and examination of the Veteran, the examiner should:

(a) Obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of any rectal disorder, to include pruritis ani and hemorrhoids;

(b) Identify all rectal disorders diagnosed in the record and or shown on examination including clarifying the cause of pruritus ani and whether such disorder is chronic and/or recurrent in nature;

(c) With regard to hemorrhoids, the examiner is requested to provide opinion as to whether the Veteran's hemorrhoids, first demonstrated by anoscopy in February 1990 (see October 1993 Dr. Rand letter received in November 1993), clearly and unmistakably was not aggravated during the period of service from December 1990 to July 1991? Clear and unmistakable means obvious and undebatable.

(d) For all rectal disorders other than hemorrhoids, provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) that the disorder had onset during or is otherwise related to any incident of the Veteran's active military service from November 1970 to March 1973, or December 1990 to July 1991.

C. Schedule the Veteran for a VA examination by a clinician who is capable of determining the current nature and likely etiology of the Veteran's reports of chronic fatigue.

The examiner's attention is directed to the Veteran's reports of muscle aches all over his body and pain affecting the knees, hips, shoulders, wrists, back, neck, elbows and chronic fatigue.  

a) The examiner should specifically address whether the Veteran has chronic fatigue syndrome or fibromyalgia. The examiner is requested to identify the criteria for diagnosing these disorders.

b) If the Veteran does not manifest chronic fatigue syndrome or fibromyalgia, the examiner should express opinion as to whether the Veteran's fatigue is attributable to a known clinical diagnosis, or is at least as likely as not a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness.  The examiner's attention is directed to the fact that the Veteran is service-connected for migraine, TMJ disorder, depressive disorder and PTSD. The examiner should also consider non-service connected conditions, including those of the pending appeal, and address whether the Veteran's claim of fatigue is a manifestation of these conditions.

A complete rationale for all opinions should be provided.

D. Schedule the Veteran for an examination with an examiner of appropriate expertise to determine the nature and etiology of the Veteran's disabilities of the bilateral shoulders. A complete rationale for all conclusions and opinions must be provided. The examiner should provide the following opinions:

(a) Obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed bilateral shoulder pain;

(b) Are the Veteran's complaints of bilateral shoulder pain medically attributable to a specific medical diagnosis?

(c) If the Veteran's symptoms of bilateral shoulder pain is related to a diagnosed disability (such as, for example, tendonitis, arthritis, etc.), then please address whether it is at least as likely as not that such diagnosed disability began in or is related to the Veterans active duty service from November 1970 to March 1973, or from December 1990 to July 1991?

E. Schedule the Veteran for a VA knee examination to determine the current level of severity of the Veteran's service-connected right and left knee disability. 

In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.  The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use.

Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: 

• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  The VA examiner should provide a complete rationale for any opinions provided.

F. Schedule the Veteran for an appropriate VA examination for diabetes mellitus. 

(a) Obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed diabetes mellitus;

(b) After reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed diabetes mellitus had its onset during the Veteran's active service from November 1970 to March 1973, or December 1990 to July 1991 or is related to an in-service disease, event, or injury. 

G. Schedule the Veteran for an appropriate VA examination for prostate cancer. 

The examiner is requested to obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed prostate cancer.

After reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed prostate cancer had its onset during the Veteran's active service from November 1970 to March 1973, or December 1990 to July 1991 or is related to an in-service disease, event, or injury. In so opining, the examiner should specifically address the service treatment records noting an enlarged prostate, as well as VA diagnostic testing and biopsies conducted on the Veteran since service. 

H. The Veteran should be afforded a VA eye examination to identify all current, chronic disabilities and for a nexus opinion to service. The examiner is requested to specifically comment upon all eye disabilities noted above, including stye and blepharitis, classifying each as chronic versus acute and transitory. 

The examiner is requested to obtain a specific history from the Veteran related to symptomology, dates of onset, treatment sought, and any other information that would assist onset of his claimed eye disorders.

With regard to any chronic disabilities which may be quiescent during the examination, and any chronic disabilities shown during the examination, the examiner is requested to render an opinion as to whether the disability is at least as likely as not (50 percent or greater probability) to have had its inception during service or to be otherwise related to service from November 1970 to March 1973, or December 1990 to July 1991. The examiner is requested to determine whether the Veteran's complaints of blurry vision to refractive error of the eye or an identified eye disease. The complete rationale for all opinions expressed should be fully explained.

4. Schedule the Veteran should be afforded an appropriate VA examination with a psychiatrist to determine the current nature and severity of his service-connected PTSD. The examiner should also provide a retrospective opinion as to the severity of his PTSD from prior to February 2012 to present. In so doing, the examiner's attention is directed towards the October 2016 VA examination report wherein the examiner opined that the Veteran's service-connected PTSD and major depressive disorder resulted in total occupational and social impairment by referencing findings prior to the examination to support his conclusion, but did not specify any particular date or time period when the Veteran's PTSD increased in severity.

All signs, symptoms, and manifestations of the Veteran's psychiatric disability should be noted. The examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's psychiatric disability has upon his ability to perform ordinary activities of daily living and his ability to perform substantially gainful employment since prior to February 2012. 

The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case.

5. Finally, readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.  With respect to the claim for a higher initial rating for rhinitis, the AOJ is advised that the claim stems from an increased rating filed in March 1996 and that the adjudication must take into account the criteria in effect prior to October 7, 1996. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012).





______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs