Citation Nr: 18142272 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 09-50 552 DATE: October 15, 2018 ORDER Entitlement to service connection for seborrheic dermatitis, to include as a manifestation of an undiagnosed illness, is granted. Entitlement to a disability rating in excess of 10 percent for hypertensive retinopathy, is denied. REMANDED Entitlement to service connection for hair loss, to include as a manifestation of a medical unexplained chronic multi-symptom illness, is remanded. FINDINGS OF FACT 1. The Veteran’s seborrheic dermatitis began during active duty service. 2. The Veteran’s hypertensive retinopathy does not cause the Veteran to have worse than 20/40 corrected distance vision, has not resulted in incapacitating episodes, and is not the cause of loss of his visual field. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for seborrheic dermatitis have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2018). 2. The criteria for entitlement to a rating in excess of 10 percent for hypertensive retinopathy have not been met. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.79, Diagnostic Codes 6000-6080 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to March 1999, with service in the Southwest Asia from January 1991 to May 1991. By way of background, in a June 2008 rating decision, the Regional Office (RO), in part, granted service connection for hypertensive retinopathy, assigning a 10 percent rating, and denied service connection for a skin disability. In a June 2009 rating decision, the RO denied service connection for hair loss and an increased rating for hypertensive retinopathy. In December 2011, the Board of Veterans’ Appeals (Board) reopened the claim of entitlement to service connection for a skin disability. In June 2017, the Board remanded the Veteran’s claims for entitlement to service connection for a skin disability and hair loss and an increased rating for hypertensive retinopathy. 1. Entitlement to service connection for a skin disability, to include seborrheic dermatitis, to include as a manifestation of an undiagnosed illness Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran served in the Southwest Asia Theater of operations during the Gulf War. As such, service connection may also be established under 38 C.F.R. § 3.317. Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). Specifically, service connection may be warranted for a Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability is either: (1) an undiagnosed illness or (2) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Guiterrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5). The Board finds that a preponderance of the evidence supports that the Veteran’s current skin condition is seborrheic dermatitis. He was diagnosed with seborrheic dermatitis on VA examinations in June 2012, October 2015, and January 2018. The 2012 and 2015 VA examiner opined that seborrheic dermatitis is a diagnosed condition with a clear etiology. As such, the Board finds that the condition is not an undiagnosed illness, and the presumptions set forth under 38 C.F.R. § 3.317 are not for application. Alternatively, the Board must consider whether the Veteran is entitled to service connection on a direct basis. Throughout the course of the appeal, the Veteran has consistently reported in statements to the VA, including in his July 2011 Board hearing testimony, that he began experiencing dry spots on his face and scalp during service after returning from Southwest Asia. He has also consistently reported that the condition is intermittent, flaring up particularly during hot weather. The Board notes that even as a lay person the Veteran is competent to report such a readily observable condition as dry spots on his face and scalp and the onset of such spots. Jandreau, supra. The Board acknowledges that on medical history reports completed in August 1995 and January 1999, the Veteran denied a history of skin disease, and his skin was noted to be normal on examination in January 1999. However, the Veteran first filed a claim with the VA for a skin condition at the time of his separation from service, and was afforded a VA examination in connection with that claim in December 1999, nine months after his separation from service. On that examination he was found to have seborrheic dermatitis involving slight scaling on his scalp, ears, eyebrow, and paranasal area of his face. Further, the Veteran has not alleged that he was suffering from flare-ups of seborrheic dermatitis during the aforementioned in-service examinations. At his 2011 Board hearing the Veteran testified that he treated the condition himself in service, applying hydrocortisone cream and Vaseline when it flared up before finally seeking medical treatment after service. A February 2006 private treatment record reflects that the Veteran reported ongoing problems with dandruff and scalp scaling and was diagnosed with seborrheic dermatitis. The doctor indicated the condition would be chronic and recurrent. The Veteran underwent another VA compensation and pension examination in January 2009 at which he stated that he first noted the dry spots on his face and scalp in 1992 or 1993, again noting the intermittent nature of the condition. At another VA examination in January 2018, the examiner also agreed that the physical examination was consistent with the diagnosis of seborrheic dermatitis. The Board finds that statements of the Veteran regarding the onset of the dry spots on his face and scalp in service and his diagnosis only nine months after service of seborrheic dermatitis, described as scaling in those same areas, to be consistent and highly probative as to the onset of his seborrheic dermatitis. The Board notes that the January 2018 VA examiner opined that the Veteran’s seborrheic dermatitis was not related to his service. However, the examiner did not discuss the Veteran’s lay statements or the diagnosis of the condition only nine months after service, proffering as an explanation of his opinion only that “there is no link between the veteran’s diagnosed seborrheic dermatitis or any other skin condition previously diagnosed and his service in the military as the affected areas are consistent with the identifiable illness seborrheic dermatitis.” Affording the Veteran the benefit of the doubt, the Board finds that service connection for seborrheic dermatitis should be granted. 2. Entitlement to a disability rating in excess of 10 percent for hypertensive retinopathy Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018); 38 C.F.R. §4.79. The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, 38 C.F.R. § 4.79, Diagnostic Code 6006 for retinopathy instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for Diagnostic Codes 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, Diagnostic Code 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. On VA examination in June 2009, October 2015, and November 2017 the examiner found no signs of hypertensive retinopathy. In October 2015 the examiner opined that the previous diagnosis of hypertensive retinopathy was an error. However, regardless of the diagnosis, the evidence does not reflect that the Veteran has experienced any incapacitating episodes, as defined in either the amended or earlier regulations, due to any eye symptomatology. Therefore, a rating in excess of 10 percent is not warranted based on incapacitating episodes. Both the former and revised criteria also provide for consideration of a rating based on visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). When the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, the visual acuity of the poorer eye will be evaluated using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76(b)(1). Provided that the claimant customarily wears contact lenses, evaluate the visual acuity of any individual affected by a corneal disorder that results in severe irregular astigmatism that can be improved more by contact lenses than by eye glasses, as corrected by contact lenses. 38 C.F.R. § 4.76(b)(2). In any case where an examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In these cases, evaluation will be based on corrected distance vision adjusted to one step poorer than measured. 38 C.F.R. § 4.76(b)(3). Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. On VA examination in June 2009, June 2012, October 2015, and November 2017 the Veteran’s corrected distance vision was measured to be 20/40 or better in both eyes. Testing indicates that neither 38 C.F.R. § 4.76(b)(1) or 4.76(b)(3) apply. Treatment records further do not indicate any vision testing that would support a compensable rating based on loss of visual acuity. Evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 22½ degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes. Id. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. The Veteran has been noted to have loss of visual field; however, the December 2017 VA examiner explained that the visual field changes are a result of the Veteran’s glaucoma. The Board notes that the Veteran is separately service-connected for his glaucoma, and the propriety of that rating is not before the Board. As a preponderance of the evidence is against finding that the Veteran’s visual field loss is related to his service-connected hypertensive retinopathy, a rating based on that symptom is not warranted. The Board notes that the Veteran has also been diagnosed with dry eyes; however, the evidence does not reflect that the condition is related to his service-connected hypertensive retinopathy. The December 2015 VA examiner explained that the Veteran’s dry eyes is secondary to exophthalmos. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for hypertensive retinopathy. REASONS FOR REMAND 1. Entitlement to service connection for hair loss, to include as a manifestation of a medical unexplained chronic multi-symptom illness, is remanded In June 2012, the Veteran underwent a VA examination at which the examiner found the Veteran had no evidence of hair loss except male pattern baldness. In June 2017, the Board remanded the Veteran’s claim to obtain an opinion as to whether the Veteran’s male pattern baldness is related to his service. The Veteran underwent another VA examination in January 2018 at which he was noted to have a shaved head and a one centimeter by one centimeter section of thinner hair in his beard that the Veteran reported previously would not grow but had recently started growing. The VA examiner opined that the Veteran’s hair loss, to include male pattern baldness, is less likely than not related to service. However, the provided rationale for the opinion discussed only seborrheic dermatitis. On remand, an addendum opinion should be requested from the January 2018 VA examiner that discusses the rationale for the nexus opinion expressed with respect to male pattern baldness. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the January 2018 VA examiner, or if unavailable, another suitably qualified examiner as to whether the Veteran’s hair loss, to include male pattern baldness, is related to his active service. A full rationale must be provided for all opinions expressed. 2. Thereafter, readjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen