Citation Nr: 18146118 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-26 073 DATE: October 30, 2018 ORDER A rating in excess of 30 percent for herpes simplex virus is denied. A rating in excess of 10 percent for tinea pedis prior to September 25, 2015 and a compensable rating from that date is denied. REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for a psychiatric disorder, to include posttraumatic stress disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s herpes simplex virus does not result in more than 40 percent of his body or exposed areas being affected; or constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs being required during the past 12-month period. 2. Prior to September 25, 2015, the Veteran's tinea did not affect at least 20 percent of his entire body or exposed areas, and systemic therapy such as corticosteroids or other immunosuppressive drugs was not required for a period of six weeks or more during the past 12-month period. 3. From September 25, 2015, the Veteran's tinea does not affect at least 5 percent of the Veteran's entire body or exposed areas; and intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs has not been required for a total duration of less than six weeks during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for herpes simplex virus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. 2. The criteria for a rating in excess of 10 percent for tinea pedis prior to September 25, 2015 and for a compensable rating from that date have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1982 to March 1985. 1. Ratings for herpes simplex virus and tinea pedis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals for higher ratings for his service-connected herpes simplex virus and tinea pedis, both of which are rated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under that Code, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating requires 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 affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 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; constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Based on the evidence, the Board concludes that a rating in excess of 30 percent for the Veteran's herpes simplex virus is not warranted for any part of the rating period. The preponderance of the evidence indicates that his herpes simplex virus does not result in more than 40 percent of his entire body or exposed areas being affected; and that he does not require constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. The VA examination in September 2015 shows this. It indicates that the Veteran's herpes affects no exposed areas and less than 5 percent of his total body. It states that the Veteran had been treated with acyclovir for 6 weeks or more, but not constantly or near constantly, in the past 12 months. No evidence shows that he meets any of the requirements for a 60 percent rating under Diagnostic Code 7804. For the tinea pedis claim, the rating period starts in August 2015. At that point, the Veteran is rated as 10 percent disabled. From the date of a VA examination on September 25, 2015, he is rated as noncompensable. First, there is no basis in the record to conclude that a rating greater than 10 percent is warranted for the Veteran's tinea pedis from August 2015 through September 24, 2015. The 10 percent rating was held over from an earlier rating decision, and there are no records showing tinea pedis warranting more than a 10 percent rating during the period from August 15, 2015 through September 24, 2015. Specifically, no evidence shows that from the August 15, 2015 date of claim through September 24, 2015, at least 20 percent of the Veteran's entire body or exposed areas was affected; or that systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more during the past 12-month period. Next, the Board concludes that from September 25, 2015 to present, a compensable rating is not warranted for the Veteran's tinea pedis. The preponderance of the evidence indicates that during this time period, the Veteran has not had tinea that affects at least 5 percent of his entire body or exposed areas; and that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were not required for a total duration of less than six weeks during the past 12-month period. The VA examiner on September 25, 2015 indicated that the Veteran has less than 5 percent of his total body area affected, and that no exposed areas were affected. It was causing blanching between toes of the right foot with loss of skin. The Veteran reported using ketoconazole for it, but this is not systemic therapy but instead is topical. No other evidence of record is supportive of a compensable rating during this time period. REASONS FOR REMAND Service connection for sleep apnea and for a psychiatric disorder are remanded Service connection for sleep apnea has been claimed as secondary to the Veteran's service connected rhinoseptoplasty, which service treatment records show was accomplished in service in 1984. A VA examiner in September 2015 opined that it was less likely than not due to or the result of the Veteran's service connected rhinoseptoplasty. However, the matter of aggravation by the service connected septoplasty disability was not specifically addressed. This needs to be done. See Allen v. Brown, 7 Vet. App. 439 (1995) (provides for secondary service connection for disability to the extent that it is chronically made worse/aggravated by a service connected disability). Accordingly, remand for a medical opinion on this matter is necessary. Beforehand, any additional relevant medical records should be obtained. With regard to the Veteran’s claim for service connection for a psychiatric disorder, remand is required for three reasons. First, the medical evidence is in conflict as to the Veteran’s diagnosis and the reasons for those diagnoses. The Veteran has submitted both VA and private treatment records establishing a PTSD diagnosis, but a September 2015 VA examination found that the Veteran did not meet the criteria for such a diagnosis. Given that each of these diagnoses relies on different factual backgrounds as relayed by the Veteran, the Board is unable to reconcile them without further commentary from a competent examiner. Second, the Veteran has also contended that his current psychiatric disorder may be secondary to his service-connected skin disabilities. The September 2015 VA examiner merely noted that the Veteran was not diagnosed as suffering from depression, so the Veteran’s claimed depression could therefore not be related to his service-connected disabilities. That examiner however, failed to discuss whether the Veteran’s diagnosed psychiatric disorder may be secondary to his service-connected disabilities. This forms a second basis for needing a new VA examination. Finally, the Veteran stated that he had previously sought psychiatric treatment when at a previous job. This evidence may tend to corroborate the Veteran’s contentions, but it has not been obtained. On remand, the Veteran must be offered the opportunity to submit this evidence or to allow VA to obtain it on his behalf. The matter is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any additional relevant medical records, regarding the Veteran’s diagnosis of and treatment for his psychiatric disorder, to include any records of his care through the employee assistance plan of his previous job. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his obstructive sleep apnea disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's currently diagnosed obstructive sleep apnea disorder was aggravated by his service-connected septorhinoplasty disability? If aggravation is found, the examiner should quantify the degree of aggravation, if possible. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and possible relationship to service of any identified psychiatric disorder. The examiner is to answer the following questions: a. From what psychiatric disorder or disorders does the Veteran currently suffer? b. If you find that the Veteran’s symptoms do not warrant a diagnosis of PTSD, please state what elements of that diagnosis are lacking. Further, please review the PTSD diagnoses of record and state why any such previous diagnoses may not be accurate. c. If you find that the Veteran is diagnosed as suffering from PTSD, then is it at least as likely as not that this disorder is related to the Veteran’s claimed in-service stressor? d. If you find that the Veteran suffers from any psychiatric disorder other than PTSD, then is it at least as likely as not that this disorder is related to or had its onset during the Veteran’s active service? e. For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not that this disorder is secondary to the Veteran’s service-connected skin disabilities? That is, is this psychiatric disorder proximately due to, the result of, or aggravated by the Veteran’s service-connected skin disabilities? Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lawson, Counsel