Citation Nr: 18149403 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-07 155 7DATE: November 9, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder is denied. Entitlement to service connection for a skin disorder diagnosed as tinea is granted. Entitlement to service connection for a skin disorder other than tinea is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, for the period from January 31, 2013, to September 14, 2015, is denied. Entitlement to a rating in excess of 40 percent from September 14, 2015, for radiculopathy and monoparesis of the axonal deep peroneal nerve of the left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) based on the service-connected radiculopathies is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran does not have posttraumatic stress disorder. 2. A skin disorder diagnosed as tinea, predominantly diagnosed as tinea versicolor, began in service and persisted until the period of the claim; a skin disorder other than tina did not manifest during active duty and is not etiologically related to service. 3. The right lower radiculopathy does not result in worse than moderate impairment. 4. The left lower radiculopathy did not result in worse than mild impairment prior to September 14, 2015. 5. The left lower radiculopathy and monoparesis of the axonal deep peroneal nerve has not been associated with marked atrophy at any time from September 14, 2015 to the present. 6. The Veteran was not unemployable due to the service-connected radiculopathies prior to September 14, 2015, or either the right lower extremity radiculopathy or left lower extremity radiculopathy and monoparesis of the axonal deep peroneal nerve from September 14, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. The criteria for service connection for a skin disorder diagnosed as tinea have been met; the criteria for service connection for a skin disorder other than tinea have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, (2018). 3. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to September 14, 2015, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 40 percent for left lower extremity radiculopathy and monoparesis of the axonal deep peroneal nerve from September 14, 2015, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to the service connected right lower extremity radiculopathy and left lower extremity radiculopathy and monoparesis of the axonal deep peroneal nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to April 1992. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the proceeding is of record. In June 2017, the Board remanded the issues of entitlement to increased ratings for radiculopathies of the lower extremities, entitlement to service connection for sleep apnea, a skin disorder, a psychiatric disorder, erectile dysfunction, special monthly compensation during a period of convalescence, and a total disability rating based on individual unemployability due to the service connected radiculopathies. In a July 2017 rating decision, the Regional Office granted the claim for special monthly compensation. In a May 2018 rating decision, the RO granted service connection for erectile dysfunction and a depressive disorder. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. Posttraumatic stress disorder Service connection is not warranted for posttraumatic stress disorder (PTSD). The Board has carefully reviewed the evidence of record but finds no probative evidence of posttraumatic stress disorder. Although the record includes findings that the Veteran exhibits symptoms of posttraumatic stress disorder, the medical record does not reveal any medical diagnosis of PTSD, and VA examiners in July 2013 and February 2018 determined the Veteran did not have posttraumatic stress disorder, explaining how the Veteran did not meet the criteria for such a diagnosis. Furthermore, although competent from his history as a nurse and medic, the Veteran has not provided diagnostic information suggestive of posttraumatic stress disorder, such as an explanation as to how the diagnosis is warranted. As such, the Board finds that posttraumatic stress disorder is not currently present and has not been present at any time during the period of the claim. 2. Skin disorder Service treatment records reveal treatment for tinea versicolor in June 1991. In January 1993, the Veteran filed a claim for service connection for a skin disorder. He reported treatment through VA. VA treatment and examination records dated in 1993 reveal histories of rash on the chest and arms and diagnosis of tinea versicolor. Subsequent VA medical records reveal consistent histories of rash on the back, trunk, and feet findings of tinea versicolor, tinea corporis, and tinea pedis. Based on the evidence of tinea versicolor in service and during the period of the claim, and the credible and competent histories provided at the time of evaluation that the tinea versicolor had existed since Gulf War deployment, the Board finds service connection is warranted for tinea. The Board finds service connection is not warranted for a skin condition other than tinea. Recent VA treatment records reveal treatment for seborrheic dermatitis that affects the scalp and ears. The Board finds the probative evidence does not support a finding that the seborrheic dermatitis was present during and since service or is etiologically related to service, however. Service treatment records and VA treatment and examination records dated in the 1990s do not report any histories indicative of the currently diagnosed seborrheic dermatitis and no findings of seborrheic dermatitis. The first finding of seborrheic dermatitis dates in February 2012. The Board notes that the Veteran has reported a rash since service and that he reported a 10+ year history of seborrheic dermatitis at the time of initial treatment in February 2012. The Board finds the Veteran’s histories are not a probative history of seborrheic dermatitis during and since service. As discussed above, the evidence indicates that the Veteran was treated for various fungal infections, predominantly diagnosed as tinea versicolor, during and soon after service, and the Board finds the clinical findings and then reported histories are more probative than the Veteran’s current history, particularly as the records dated in the 1990s do not report any histories of symptoms involving the scalp or ears. Increased Ratings 3. Radiculopathy of the right lower extremity 4. Radiculopathy of the left lower extremity prior to September 14, 2015 5. Radiculopathy and monoparesis of the left lower extremity thereafter The Veteran is rated at 20 percent for radiculopathy of the right lower extremity based on moderate impairment of the sciatic nerve. The left lower extremity is rated at 10 percent for radiculopathy prior to September 14, 2015, and 40 percent thereafter for radiculopathy and monoparesis of the axonal deep peroneal nerve. The neuropathies of the lower extremities have been rated as incomplete paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8520. “Incomplete paralysis” is defined as a degree of lost or impaired function substantially less than the type pictured for complete paralysis. When the involvement of a peripheral nerve is wholly sensory, the rating should be for the mild or, at most, moderate degree. 38 C.F.R. § 4.124a. VA provides ratings between 10 and 80 percent for impairment of the sciatic nerve. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A June 2013 private evaluation reveals the Veteran’s history of pain that radiates into the right lower extremity. The Veteran reported that the right leg can go numb if the pain in his lower back worsens. Examination revealed decreased sensation in the right lower extremity. July 2013 VA “back” and “peripheral nerve” examination records reveal diagnosis of bilateral radiculopathies. The Veteran reported episodes numbness and tingling with shooting pains down the legs, right worse than left, that occurred approximately weekly and lasts one to two days per episode. The Veteran estimated that he had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity and mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. Evaluation revealed full motor strength and no atrophy. Gait was normal. Deep tendon reflexes were 1+. Sensation was normal except at the feet/toes, where it was decreased. The examiner estimated that the Veteran had moderate impairment of the sciatic nerve in the right lower extremity and mild impairment of the sciatic nerve in the left lower extremity. An August 2013 VA treatment record indicates that deep tendon reflexes were 2+. An April 2014 VA treatment record indicates that the Veteran had motor strength of 3+/5 with hip flexion, 4+/5 with knee extension and flexion, 5/5 with ankle dorsiflexion, 4-/5 with hip abduction and extension. Sensation was intact to light touch, and there was no apparent deficit with balance. A May 2014 VA examination record reveals the Veteran’s history of daily radicular pain with occasional numbness in the legs. Motor strength was full, and there was no atrophy. Deep tendon reflexes were 2+, and sensation was intact. The record reports that the Veteran had mild intermittent pain associated with the radiculopathy and the examiner estimated that the Veteran had mild radiculopathy of each lower extremity. A November 2015 VA treatment record indicates that the Veteran was status-post left hip replacement. The record notes that the Veteran had a post-operative foot drop and “somewhat significant” neurological pain issues in the left leg. Examination revealed frank foot drop with little to no dorsiflexion process. The diagnosis was continued neuropraxia of the left lower extremity. The record notes that the Veteran’s focal neurologic deficits in his left lower extremity remained similar with only mild changes to sensorium distally. A November 2015 SSA evaluation report indicates that the Veteran had benign strength of 4/5 below the left knee and 5/5 above the left knee and 5/5 throughout the right lower extremities. Sensation was intact to touch, and deep tendon reflexes were intact. The Veteran was noted to have normal range of motion of the ankle and great toes. December 2015 VA treatment record indicates that the Veteran denied any numbness, pain, or weakness in the right leg. Examination revealed no atrophy and normal muscle bulk. Motor strength was 5/5 in the right lower extremity. Strength was at least 4/5 in the left lower extremity, except with dorsiflexion. Deep tendon reflexes were 2+. Sensation to light touch and pinprick was absent in the lateral aspect of the left leg below the knee, dorsum of the foot, and web between the first and second toes. Sensation was intact to proprioception and vibration. The record notes that electromyogram findings suggested a severe axonal deep peroneal mononeuropathy, not likely related to lumbosacral radiculopathy. The record adds that there was no clinical or electrodiagnostic evidence of L5 radiculopathy. A March 24, 2016, VA treatment record indicates that the Veteran demonstrated “grossly functional mobility bilaterally.” The record notes that the Veteran had muscle strength of 4/5 in the right lower extremity. Muscle strength was 4 or 4+ with left hip flexion and abduction and left knee flexion and extension, 3+ with left hip extension, and absent with ankle dorsiflexion. The April 2016 Persian Gulf Registry examination record indicates that the Veteran had no apparent atrophy in the lower extremities, full muscle strength, and 2+ deep tendon reflexes. Sensation to light touch was absent in the lateral aspect of the left leg below the knee, dorsum of the foot, and web between the first and second toes. Sensation was intact to proprioception and vibration. A May 2016 VA treatment record indicates that the Veteran had at least 4/5 strength in the right lower extremity. Strength was 4+ with left hip abduction and adduction, 4/5 with hip flexion, knee flexion, and knee extension, 3+ with hip extension, and absent with ankle dorsiflexion. Sensation was diminished at the lateral lower leg within the L5 dermatome distribution compared to the right. A May 2016 VA examination record reveals the Veteran’s history of severe pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. The Veteran did not report symptoms in the right lower extremity. Motor strength was 5/5 in the right lower extremity. In the left lower extremity, motor strength was 4/5 with knee extension, 0/5 with ankle plantar flexion, and 0/5 with ankle dorsiflexion. There was no atrophy. Deep tendon reflexes were 2+ except at the left ankle, where it was 1+. Sensation was normal in the right lower extremity. In the left lower extremity, sensation was decreased at the thigh and absent in the lower leg/ankle and toes/foot. There were no trophic changes. The Veteran had an antalgic gait and used a cane due to left leg peripheral nerve damage. The examiner determined the peripheral nerves were normal in the right lower extremity. In the left lower extremity, the examiner determined there was moderate incomplete paralysis of the internal popliteal nerve, moderately severe incomplete paralysis of the sciatic nerve, severe incomplete paralysis of the posterior tibial nerve, and complete paralysis of the external popliteal nerve and musculocutaneous nerve. The record reveals the Veteran’s history of regular use of a wheelchair, crutches, and a walker and constant use of a cane and brace. The examiner determined the peripheral nerve condition would affect occupational functioning by making it difficult to stand longer than 15 minutes or to balance. A July 2016 VA treatment record reveals a finding that the Veteran had stable single leg stand balance on the right foot for at least 15 seconds. Motor strength of the right lower extremity was 5/5, except with hip flexion where it was 4+/5. In the left lower extremity, it was absent in the ankle dorsiflexion, 4+/5 with hip flexion and abduction; it was otherwise 5/5. A November 2016 VA treatment record indicates that the Veteran had iatrogenic sciatic/peroneal nerve neuralgia with foot drop and allodynia and paresthesias in the left foot. Examination revealed left foot drop and allodynia with paresthesia of the lateral calf. Strength testing was 4/5. A May 2017 VA treatment record reveals the Veteran’s history of bilateral shooting sprinkling pain in the feet. Pulses were noted to be 2+ bilaterally, and gait was normal. A September 2017 VA treatment record indicates that the Veteran had iatrogenic sciatic/peroneal nerve neuralgia with foot drop and allodynia and paresthesias in the left foot. Examination revealed left foot drop and allodynia with paresthesia of the lateral calf. Strength testing was 4/5. After consideration of the evidence, the Board finds an initial rating in excess of 20 percent is not warranted for the radiculopathy of the right lower extremity. Specifically, the Board finds the record does not suggest the presence of more than moderate impairment of the right sciatic nerve. Although the record includes histories of radicular symptoms in the right lower extremity, neurological testing predominantly reveals normal or near normal findings regarding sensation, deep tendon reflexes, or motor strength; the Veteran has, at most severe, estimated the right lower extremity symptoms as moderate; and VA examiners have, at worst, estimated the right lower extremity impairment as moderate. The Board finds the evidence does not suggest impairment worse than moderate based on the evidence of record. The Board has considered whether there is any other schedular basis to assign a separate rating or a rating higher than 10 percent for radiculopathy of the right lower extremity. The Board further finds an initial rating in excess of 10 percent is not warranted for radiculopathy of the left lower extremity prior to September 14, 2015. The record predominantly reveals findings of intact deep tendon reflexes and normal sensation and motor function; the Veteran estimated the left lower extremity symptoms as mild during examinations for compensation purposes; and VA examiners estimated the left lower extremity impairment as mild. The Board finds the evidence does not suggest impairment worse than mild during this period based on the evidence of record. Finally, the Board finds a rating in excess of 40 percent is not warranted at any time from September 14, 2015, for the left lower extremity. Review of the record includes no findings of marked atrophy, or even atrophy, and the Veteran has not alleged the existence of atrophy. In the absence of evidence of atrophy, a higher rating is not warranted under Diagnostic Code 8520. The Board has considered whether there is any other basis for assigning a higher or separate rating but has found none. The Board notes that the record includes electromyogram evidence of peroneal nerve paralysis. The manifestations of the peroneal nerve paralysis are contemplated in the currently assigned rating, however; there is no evidence of distinct symptoms that are not considered in the rating assigned for this period. The record also includes the 2016 VA examiner’s determination that there was impairment of the internal popliteal nerve, posterior tibial nerve, and musculocutaneous nerve. This determination is not consistent with the electromyogram, however, and it is not corroborated by other examination findings. The Board finds the electromyogram is the most probative evidence as to the left lower extremity nerve impairment, particularly because the 2016 VA examiner did not provide an opinion as to how it was determined that these nerves were affected. 6. TDIU In June 2017, the Board determined the issue of entitlement to a TDIU based on the service-connected radiculopathies had been raised by the record, pursuant to Rice v Shinseki, 22 Vet. App. 447, 453-54 (2009). A total disability rating based on individual unemployability (TDIU) may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). The record indicates that the Veteran performed nonmarginal employment through at least May 20, 2015. The record further indicates that the Veteran is assigned a combined 100 percent rating from September 14, 2015, and special monthly compensation pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.40(i) from September 14, 2015, to December 1, 2018. Thus, a TDIU is only available if the service connected radiculopathies resulted in unemployability from May 20, 2015, to September 14, 2015, or if the right lower extremity radiculopathy or left lower extremity radiculopathy and monoparesis of the axonal deep peroneal nerve resulted in unemployability from December 1, 2018. Buie v. Shinseki, 24 Vet. App. 242 (2011). The Board finds a TDIU is not warranted based on the service-connected radiculopathies prior to September 14, 2015. Although the record reveals impairment associated with the radiculopathies, the record does not suggest that the radiculopathies resulted in unemployability during this period. Notably, the record does not include evidence, including, history of unemployment due to the radiculopathies prior to September 14, 2015, and the record does not suggest such impairment due to the radiculopathies. As discussed above, the Board finds the radiculopathies resulted in no worse than mild impairment of the left lower extremity and moderate impairment of the right lower extremity prior to September 14, 2015. The record indicates that the Veteran reported occupational impairment during this period from the left hip disability, namely attending medical appointments and preparing for the left hip replacement rather than the radiculopathies that preexisted the September 2015 surgery. Thus, the Board finds a TDIU is not warranted for this period. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Board finds the record would benefit if a medical opinion were obtained to address the reported history that the Veteran snored in service. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records, including any non-VA treatment records. 2. Obtain a medical opinion to determine whether the obstructive sleep apnea is related to service. All pertinent evidence of record must be made available to and reviewed by the examiner. The medical professional providing the opinion should state whether it is at least as likely as not (50 percent probability or greater) that the disorder first manifest in active service or is etiologically related to service. The examiner must provide a rationale for all opinions expressed, with consideration of the reported history of snoring in service. If an examiner is unable to provide any required opinion, the examiner should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. (Continued on the next page)   3. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel