Citation Nr: 18143353 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-18 952A DATE: October 18, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for diabetes mellitus (DM), type 2, is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. Entitlement to a compensable rating for eczema is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a gastric ulcer is remanded. Entitlement to service connection for internal hemorrhoids is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. Service did not cause the Veteran's sleep apnea. 2. Service did not cause the Veteran’s DM. 3. VA has not service connected the Veteran's hypertension. Therefore, VA may not service connect his ED secondary to his hypertension. 4. The Veteran has used neither oral nor topical medications to treat his eczema, nor did he have any treatment or procedure for it. The Veteran's eczema affects less than 5 percent of the Veteran’s total body area and less than 5 percent of the exposed area. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 2. The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 3. The criteria for service connection for ED have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to a compensable disability evaluation for eczema have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2002 to November 2002 and from January 2004 to February 2004 with service in the Army National Guard from January 1979 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA). Service Connection Service Connection – Direct Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the “nexus” requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service Connection – Secondary Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Issue 1: Entitlement to service connection for sleep apnea Issue 2: Entitlement to service connection for diabetes mellitus (DM), type 2 The Veteran has sleep apnea and DM, so these diagnoses satisfy the first prong of service connection for these claims. The Veteran's claims fail the second prong of service connection – in-service incident. The Veteran has not alleged, nor does the evidentiary record identify, any in service disease, injury, or event suggestive of sleep apnea or DM. Therefore, VA is not required to examine the Veteran for compensation purposes. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010) (holding that the Board's use of "competent medical evidence" in discussing whether there is an association with service is harmless error when the record contains no evidence that the Veteran's condition was related to service other than his own statements suggesting a link); see also McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006) (holding that a medical examination is not necessary unless there is 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). As the Veteran has failed the second prong of service connection for these two claims, the Board denies the appeals. Issue 3: Entitlement to service connection for erectile dysfunction (ED) The Veteran's representative, in its October 2018 Written Brief Presentation, claimed the Veteran's service connection claim for hypertension is on appeal. It is not. As such, and because VA has not service connected the hypertension, the Board must deny Veteran's service connection claim for ED, secondary to hypertension, which is the theory of entitlement the Veteran’s representative identified in its October 2018 Written Brief Presentation. Issue 4: Entitlement to compensable rating for eczema Increased Ratings Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Merits Analysis – Eczema VA has rated the Veteran’s eczema under Diagnostic Code 7806, which provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated non-compensable (0 percent). 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, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. The October 2015 VA examiner noted that the Veteran did not treat his eczema in any way in the past year. That is, he used neither oral nor topical medications, nor did he have any treatment or procedure for it. The examiner also noted that the eczema affected less than 5 percent of the Veteran’s total body area and less than 5 percent of the exposed area. Based on this report and the regulations above, VA properly rated the eczema as noncompensable. The undersigned notes that VA's skin regulations changed for claims, such as the Veteran's, pending before the agency on August 13, 2018. The undersigned has reviewed the amended regulations but finds that they will not provide a more favorable result. Indeed, the regulations have not materially changed for rating eczema. Because the Veteran has not treated the eczema, the eczema affected less than 5 percent of the Veteran’s exposed areas, and there were no lesions involving at least 5 percent of the entire body, he does not merit a compensable rating under the new regulations. REASONS FOR REMAND Issue 5: Entitlement to service connection for a low back disorder VA examined the Veteran for this claim in October 2015. The examiner causally connected the Veteran's low back disorder to service, but this opinion is error. Specifically, the examiner relied upon a January 2004 service treatment record that shows a history of back pain, but not a specific incident during the Veteran's 15 days of active service in early 2004. Therefore, remand is required for an addendum opinion. Issue 6: Entitlement to service connection for a gastric ulcer VA did not examine the Veteran for this claim. The undersigned finds he merits an examination. The Veteran had surgery for a gastric ulcer in February 1987, as reflected in multiple periodic examinations in his service treatment records. While Army physicians recorded this event, they never "noted" it to be disabling, including but not limited to, prior to his mobilization in May 2002 to Kuwait. Accordingly, the undersigned finds that his gastric ulcer did not clearly and unmistakably preexist active service. By extension, VA must therefore analyze this claim as one of direct service incurrence and must address his treatment for his ulcer during his 2002 mobilization. Issue 7: Entitlement to service connection for internal hemorrhoids VA examined the Veteran for this claim in October 2015. The examiner opined that the Veteran's hemorrhoids were not related to service because "the STRs are silent for the claimed condition." While true, the Veteran's treatment for his gastric ulcer during his 2002 mobilization also notes a history of dark stool, which hemorrhoids may have caused. Remand is therefore warranted for an addendum opinion. Issue 8: Entitlement to service connection for gastroesophageal reflux disorder (GERD) VA examined the Veteran for this claim in October 2015. The examiner opined that the Veteran’s hemorrhoids were not related to service because “the STRs are silent for the claimed condition.” While true, the Veteran’s treatment for his gastric ulcer during his 2002 mobilization also notes that it impacted his esophagus. Remand is therefore warranted for an addendum opinion. Issue 9: Entitlement to service connection for depression VA has not examined the Veteran for this claim. Based on a November 29, 2012 VA treatment record, VA found the depression, to include insomnia, was secondary to his low back disorder claim. Therefore, this issue is intertwined with the low back disorder, and remand is warranted. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who conducted the October 2015 back examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with this addendum opinion. The examiner is advised that the basis upon which the positive nexus was given in October 2015 is incorrect as described above. Therefore, the examiner must once again answer the following question: Is it as least as likely as not (50 percent or greater probability) that the Veteran's low back disorder, was caused by service or otherwise incurred in service? Why or why not? In answering this question, the examiner should address: a) the Veteran's contention, as reflected in his April 2016 VA Form 9, that his "equipment weight" as an infantryman caused his disorder. b) The relevance, if any, of the Veteran's March 2004 workplace accident in which he injured his back. If the 2015 examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. 2. Schedule the Veteran for a compensation examination to determine the nature and etiology of his gastric ulcer claim. The examiner is advised that the examiner MUST, for purposes of the Board's legal analysis and pursuant to the explanation above, presume the Veteran's gastric ulcer did NOT pre-exist his active military service, especially his 2002 mobilization to Kuwait. The examiner must answer the following question: Is it as least as likely as not (50 percent or greater probability) that the Veteran’s gastric ulcer was caused by service or otherwise incurred in service? Why or why not? 3. Return the claims file to the examiner who conducted the October 2015 hemorrhoids examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with this addendum opinion. The examiner is advised that the basis upon which the negative nexus was given in October 2015 is incorrect as described above. Therefore, the examiner must once again answer the following question: Is it as least as likely as not (50 percent or greater probability) that the Veteran's hemorrhoids were caused by service or otherwise incurred in service? Why or why not? In answering this question, the examiner should address the Veteran's June 5, 2002 STR that reflects "dark stools last week," and the relevance, if any, of this symptom to the claim. If the 2015 examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. 4. Return the claims file to the examiner who conducted the October 2015 GERD examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with this addendum opinion. The examiner is advised that the basis upon which the negative nexus was given in October 2015 is incorrect as described above. Therefore, the examiner must once again answer the following questions: a) Is it as least as likely as not (50 percent or greater probability) that the Veteran's GERD was caused by service or otherwise incurred in service? Why or why not? b) Is it as least as likely as not (50 percent or greater probability) that the Veteran’s GERD, was CASUED by his gastric ulcer? Why or why not? c) Is it as least as likely as not (50 percent or greater probability) that the Veteran’s GERD, was AGGRAVATED by his gastric ulcer? Why or why not? In answering this question, the examiner should address the Veteran’s June 5, 2002 STR that reflects “stomach pain which radiates to the esophagus region," and the relevance, if any, of this symptom to the claim. If the 2015 examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. 5. Because the Veteran's depression is intertwined with his low back disorder claim, determine what, if any, actions are merited based upon the resolution of the back claim. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel