Citation Nr: 18149168 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-35 826 DATE: November 9, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a skin disability of the right ankle is reopened. New and material evidence having been received, the claim for entitlement to service connection for a skin disability of the left ankle is reopened. New and material evidence having been received, the claim for entitlement to service connection for a skin disability of the right foot is reopened. New and material evidence having been received, the claim for entitlement to service connection for a skin disability of the left foot is reopened. Entitlement to service connection for a right hip disability is denied. Entitlement to a disability rating higher than 20 percent for degenerative joint disease of the lumbar spine (hereinafter, “lumbar spine disability”) is denied. Entitlement to a compensable disability rating for tinea corporis of the bilateral hands is denied. REMANDED Entitlement to service connection for a skin disability of the right ankle is remanded. Entitlement to service connection for a skin disability of the left ankle is remanded. Entitlement to service connection for a skin disability of the right foot is remanded. Entitlement to service connection for a skin disability of the left foot is remanded. Entitlement to a disability rating higher than 20 percent for residuals of prostate cancer is remanded. Entitlement to a compensable disability rating for erectile dysfunction, associated with residuals of prostate cancer, is remanded. FINDINGS OF FACT 1. A December 1990 rating decision denied the Veteran’s claim for entitlement to service connection for bilateral ankle and bilateral foot disabilities. 2. Evidence received since the December 1990 rating decision includes VA and private treatment records. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence does not support that the Veteran has a right hip disability that is related to a disease or injury incurred in service. 4. The preponderance of the evidence establishes that the Veteran’s service-connected lumbar spine disability has been productive of, at most, guarding of the lumbar spine resulting in an abnormal gait. 5. The preponderance of the evidence reflects that for the period on appeal, the Veteran’s tinea corporis covered less than five percent of his entire body, and that he was treated with, at most, topical therapy for less than six weeks during a 12-month period. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim for entitlement to service connection for a skin disability of the right ankle has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence sufficient to reopen the claim for entitlement to service connection for a skin disability of the left ankle has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim for entitlement to service connection for a skin disability of the right foot has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence sufficient to reopen the claim for entitlement to service connection for a skin disability of the left foot has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for a disability rating higher than 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5242. 7. The criteria for a compensable disability rating for tinea corporis of the bilateral hands have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1968 to January 1971, July 1971 to March 1976, and March 1976 to September 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board notes that the Veteran has been awarded a special monthly compensation based on the loss of use of a creative organ, effective March 22, 2013, that date of the Veteran’s claim. As this issue has been granted, it is not currently before the Board. As a final preliminary matter, the Board notes that it has recharacterizes the Veteran’s bilateral ankle and bilateral foot disabilities to reflect the Veteran’s claims that he had calluses in service, as well as his currently diagnosed chronic calluses and lesions on his feet. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. at 117-18. In this case, a December 1990 rating decision denied entitlement to service connection for a bilateral ankle and bilateral foot disability, as the Veteran was not found to have a current disability. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen his previously denied bilateral ankle and bilateral foot claims in March 2013. Evidence received since the December 1990 rating decision include VA and private medical treatment records, which reflect a current disability on the Veteran’s feet. This evidence is new because it was not previously associated with the claims file. The evidence is material because it relates to unestablished facts necessary to establish the Veteran’s claims, specifically, establishing current disabilities. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claims for entitlement to service connection for bilateral ankle and bilateral foot disabilities are reopened. As will be discussed in the REMAND portion of the decision below, the Board finds that a remand of these issues is warranted for further development of the Veteran’s claims. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, service connection may also be granted for certain enumerated chronic diseases, including arthritis, that manifest to a compensable degree within one year of the veteran’s separation from service, or where the veteran shows continuity of symptomatology. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran maintains that he is entitled to service connection for a right hip disability. He argues that this disability was caused by having to run in leather soled combat boots on hard surfaces during service. A review of the Veteran’s service treatment records reveals no reports of, or treatment for, any right hip disability. Further, no right hip disability was found upon examination for his June 1988 separation examination, and the Veteran himself did not note any hip disabilities on his June 1988 report of medical history. Regarding the existence of a current disability, the first instance of reports of a current right hip disability was in April 2017. In his VA treatment records from April 2017, a notation indicated that the Veteran reported experiencing right hip pain for two weeks, with no reported incident or injury. He further denied any specific trauma. Upon imaging study, he was found to have chronic right hip pain. There was no indication of arthritis. The Board finds that entitlement to service connection for a right hip disability is not warranted. Although the Veteran reported that his right hip pain was caused by strain from wearing combat boots in service, this contention is outweighed by the medical evidence of record, and the Veteran’s own lay statements. Specifically, no hip disability was found upon separation from service, and the Veteran himself did not mention any hip pain or disability in his separation report of medical history. Further, the first instance of reports of hip pain in the medical records associated with the claims file was in April 2017. Even then, the Veteran reported experiencing this pain for two weeks, and did not attribute it to any strain from wearing combat boots in service. Finally, there is no evidence of record of reports of continuous symptomology of a chronic disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Thus, entitlement to service connection for a right hip disability is not warranted. Increased Rating Disability evaluations are determined by the application of the VA 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59. Lumbar Spine Disability Currently, the Veteran’s lumbar spine disability is rated at 20 percent under Diagnostic Code (DC) 5242. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5242. A 40 percent evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. Id. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. On January 2014 VA examination, the Veteran was provided diagnoses of degenerative arthritis of the spine, and lumbar spine degenerative joint disease. The Veteran reported increased low back pain. He did not report any flare-ups that impacted functionality. Range of motion measurements were as follows: forward flexion to 80 degrees, with objective evidence of painful motion at 80 degrees; extension to 20 degrees, with objective evidence of painful motion at 20 degrees; right and left lateral flexion to 30 degrees or greater, with no objective evidence of painful motion; and right and left lateral rotation to 30 degrees or greater, with no objective evidence of painful motion. He could perform repetitive-use testing with three repetitions with no additional loss of range of motion. Regarding any functional loss, he experienced less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. He did not have muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. However, he was found to have guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. Muscle strength testing revealed normal strength with no muscle atrophy. Reflex and sensory examinations were normal, and the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have IVDS and did not require the use of any assistive devices. There was no ankylosis of the spine. Arthritis was documented on imaging studies. Also of record are VA outpatient treatment records and medical records provided by the Social Security Administration. However, these records do not reflect symptomology that is worse than the VA examination of record. In light of the foregoing, the Board finds that a rating higher than 20 percent for the Veteran’s lumbar spine disability is not warranted. During the period on appeal, the Veteran’s lumbar spine disability was productive, at most, of guarding of the lumbar spine that resulted in guarding severe enough to result in an abnormal gait or abnormal spinal contour. Thus, warranting a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5242. There was no evidence of forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; thus, a rating higher than 20 percent for the Veteran’s lumbar spine disability is not warranted. Id. Further, the Board notes that there is no evidence of any flare-ups of the Veteran’s symptomology that would result in a further limitation of range of motion. In sum, the Board finds that a preponderance of the evidence is against the claim, and entitlement to a rating higher than 20 percent for a lumbar spine disability is not warranted. Tinea Corporis Currently, the Veteran’s service-connected tinea corporis of the bilateral hands is provided a noncompensable rating under DC 7806. The Veteran maintains that he is entitlement to an increased rating. The Veteran has also claimed that he has been diagnosed with skin cancer. The Board notes that it does not appear that the Veteran is service-connected for skin cancer. The Board notes that VA regulations regarding the skin have been recently updated, effective August 13, 2018. As the Veteran’s claim was pending as of this date, both the pre- and post-August 13, 2018, regulations are for application, whichever are more favorable to the Veteran. However, as application of the post-August 13, 2018, regulations do not result in a more favorable rating for the Veteran, they will not be considered. DC 7806 provides a noncompensable rating when less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected, and no more than topical therapy was required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. A 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, when intermittent systemic treatment such as corticosteroids or other immunosuppressive drugs are 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, when 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 more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic treatment such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. On January 2014 VA examination, the Veteran was provided a diagnosis of tinea corporis on his hands. The Veteran reported intermittent hand rashes since the 1970s. the Veteran’s skin condition did not cause any scarring or disfigurement of the head, face, or neck. Further, the Veteran did not have any systemic manifestations due to any skin disease. Regarding treatment, the Veteran was prescribed topical corticosteroids for less than six weeks for this skin disability. There was no indication of any systemic treatment. On physical examination, the Veteran’s skin disability was noted to affect less than five percent of the total body area. The skin disability was described as dry, scaly hands bilaterally. The Board finds that entitlement to a compensable disability rating for the Veteran’s tinea corporis is not warranted. The preponderance of the evidence of record does not establish that the skin disability affects at least 5 percent of the entire body or of exposed areas. 38 C.F.R. § 4.118, DC 7806. Further, the Board finds that the preponderance of the evidence does not support that more than topical therapy was required during the 12-month period. Based on a review of the evidence of record, the Board finds the Veteran’s topical corticosteroid treatment to be topical in nature rather than systemic, for there is no indication that the intermittent use of topical corticosteroids had any affect beyond the area to which they were applied. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Accordingly, the Board finds that a compensable disability rating for the Veteran’s tinea corporis is not warranted. REASONS FOR REMAND The Veteran maintains that he is entitled to service connection for a skin disability on his bilateral ankles and feet, and that he is entitled to an increased rating for his service-connected prostate cancer and associated erectile dysfunction. For the reasons discussed below, the Board finds that a remand for these issues is warranted. Skin Disability on Bilateral Ankles Bilateral Feet The Veteran maintains that he is entitled to service connection for a skin disability on both of his ankles and feet. The Board notes that the Veteran has not been provided a VA examination for these disabilities. In his July 2016 VA Form 9, the Veteran maintained that he had calluses on his feet that began in service and that continued to the present. A review of the Veteran’s service treatment records confirms the Veteran’s claim that he was treated for calluses in service. Specifically, a notation in November 1971 indicates that he was treated for calluses. Further, the Veteran’s current medical treatment records reflect the Veteran reporting recurrent calluses on his feet. Private medical records associated with the claims file from April 2007 appear to indicate that the Veteran had presented with foot issues for the past 35 years. Further, VA treatment records reflect reports of, and treatment for, lesions and calluses on the Veteran’s feet. Accordingly, because there is an indication of an in-service disease or injury, and because the evidence of record indicates that the Veteran has a current skin disability on his feet, the Board finds that a remand is warranted to afford the Veteran a VA examination. Prostate Cancer and Associated Erectile Dysfunction The Veteran is currently service-connected for the residuals of prostate cancer, rated at 100 percent from March 22, 2013, and at 20 percent from June 1, 2013. He is also service-connected for erectile dysfunction associated with the residuals of prostate cancer, and is provided a noncompensable rating. The Veteran initially filed a notice of disagreement to the January 2014 rating decision granting entitlement to service connection for the Veteran’s claims. A statement of the case was issued in June 2016 confirming the 100 percent rating and subsequent 20 percent rating for the residuals of prostate cancer, since the Veteran’s cancer was in remission. In his July 2016 VA Form 9, the Veteran claimed that his prostate cancer had returned. The Board notes that up-to-date medical records reflecting the Veteran’s current prostate cancer have not been associated with the claims file. As there is an indication of a potential worsening of the Veteran’s disability, the Board finds that a remand is warranted to obtain recent medical records, as well as to obtain a new medical opinion. As the development of the prostate cancer claim may result in additional evidence that could affect a determination with respect to the erectile dysfunction claim, the two issues are inextricably intertwined and the issue of entitlement to a compensable rating for erectile dysfunction must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, these matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private medical treatment records for his prostate cancer and associated erectile dysfunction. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records related to the claims on appeal. 3. Schedule the Veteran for an examination by an appropriate clinician for the Veteran’s reported skin disabilities on his ankles and feet, and for his prostate cancer, and erectile dysfunction. Following a review of the claims file, the examiner should identify any currently diagnosed skin disability on the Veteran’s feet or ankles, prostate cancer, and erectile dysfunction, and provide opinions on the following: a) Regarding the skin disabilities on the Veteran’s ankles and feet, identify any currently diagnosed skin disabilities, to include chronic calluses and opine as to whether it is at least as likely as not (a 50 percent probability or greater) that said disability, if diagnosed, was caused by or related to the calluses the Veteran was treated for in-service. b) Regarding the Veteran’s prostate cancer and erectile dysfunction, the examiner should provide a full description of the Veteran’s disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A complete rationale for all opinions must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel