Citation Nr: 18151938 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-17 878 DATE: November 20, 2018 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to a compensable evaluation for eczema is denied. REFERRED On appeal the Veteran has raised the issue of entitlement to service connection for bilateral lower extremity radicular pain. This issue is not currently developed and certified for appeal. Accordingly, it is referred for appropriate action. REMANDED Entitlement to service connection for residuals of a right pelvic fracture is remanded. Entitlement to an evaluation in excess of 10 percent disabling for a right hip strain with mild degenerative changes is remanded. Entitlement to an evaluation in excess of 10 percent disabling for a right knee strain with mild degenerative changes is remanded. Entitlement to a total disability rating based on individual unemployability is remanded.   FINDINGS OF FACT 1. A chronic right shoulder disorder was not demonstrated in service, and right shoulder arthritis was not compensably disabling within a year of the Veteran’s separation from active duty. 2. Eczema does not affect at least 5 percent, but less than 20 percent, of the entire body; or, affect at least 5 percent, but less than 20 percent, of the exposed areas of the body; and intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have not been required for a total duration of less than six weeks during the past 12-month period. CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred or aggravated inservice, and right shoulder arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for a compensable rating for eczema are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to November 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran testified at a Board videoconference hearing in February 2018. A transcript of that proceeding is of record. Right Shoulder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires (1) medical 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection for arthritis may be established on a presumptive basis by showing that the disease was manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). The Veteran contends that a right shoulder disorder is the result of an in-service injury. He contends that while onboard ship in June 2007 he fell and injured the right shoulder joint. A review of the service treatment records reveals no complaints, findings, or diagnoses of a right shoulder disorder. A right shoulder disorder was not reported or diagnosed at his October 2007 separation examination. ‘ The Veteran was afforded a VA examination in November 2013. The examiner reviewed the service and VA treatment records, and following an examination diagnosed a mild intermittent right shoulder strain. The Veteran denied receiving care for a shoulder disorder while on active duty. The onset of this disorder was reported by the Veteran to be in 2012. The examiner opined that this right shoulder disorder was not caused by or incurred in service. Subsequent to the above described examination, VA outpatient treatment records reflect evidence of degenerative changes of the right shoulder consistent with arthritis in January 2014, i.e., over six years after separation. The Board finds that the medical records, to include the history reported by the Veteran, establish that there were no complaints, treatment or diagnoses of a right shoulder disorder in service or for at least four years after separation from active duty. There is no medical opinion evidence linking the Veteran’s current right shoulder disorder to service. The earliest evidence of a right shoulder disorder appears in a November 2013 VA examination report. There is no competent evidence linking a current right shoulder disorder to service. Hence, the criteria for service connection for a right shoulder disorder have not been met. As the preponderance of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. Eczema Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Service connection for eczema has been in effect since September 12, 2013, whereupon the Veteran objected to the assigned rating. In a May 2015 statement of the case, VA continued a non-compensable rating for eczema. The Veteran disagreed and perfected the appeal, which is currently before the Board. The Veteran’s service-connected eczema is currently rated under Diagnostic Code 7806. Under that Code eczema is assigned a 10 percent rating where there is at least 5 percent, but less than 20 percent, of the entire body affected, 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. 38 C.F.R. § 4.118. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be 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. Id. The Veteran contends that the severity of his skin condition warrants a compensable rating. The Veteran was afforded a VA examination for his skin disability in November 2013. At the time of that encounter, the Veteran reported using topical moisturizer on a constant or near constant basis to address the symptoms. Following a physical examination the examiner found that eczema involved less than 5 percent of total body area, and less than 5 percent of exposed area. At his Board hearing in February 2018, the Veteran testified that his skin disorder was isolated to his forehead, and that an earlier outbreak on his elbow had responded to medication and had since resolved. He denied being on any medication for eczema. On review, a compensable rating is not warranted in light of the rating criteria for eczema. The evidence preponderates against fining that the disorder affects 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 at any time since the filing of the Veteran’s claim. Further, there is no evidence that eczema has required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during any 12-month period during the appellate term. Hence, a compensable rating is not in order. The claim is denied. REASONS FOR REMAND During the pendency of the appeal in 2014, the Veteran moved from Pennsylvania to Florida. Primary care services and case management were transferred to the Ocala, Florida Community Based Outpatient Clinic. In order to ensure that the most recent VA treatment records are included in the claims file, remand is necessary to secure and consider records generated after the Veteran’s relocation. Service connection for residuals of a right pelvic fracture During a February 2016 VA examination the Veteran associated residuals of a fractured pelvis with his service connected lumbar spine disability. At his Board hearing in February 2018, the Veteran reported that a VA provider in Philadelphia had told him that his lower back pain originated from his pelvis. The Veteran also described two pelvic areas that were injured during a 2007 in-service fall; these reportedly resulted in a dislocation type injury with a crack, as well as a separate fracture. VA treatment records appear to only address the fracture claim. The VA examinations in November 2013 and March 2016 did not address the Veteran’s statements about damage done to his pelvis as reported by previous providers. Accordingly, further development in the form of an additional examination is necessary as to this disability claim and it is remanded. Increased rating for a right hip strain with mild degenerative changes At a February 2016 VA examination the examiner found an abnormal range of right hip motion with flexion measured from 0 to 110 degrees and extension measured from 0 to 30 degrees. There was evidence of localized tenderness but no pain on weight-bearing testing. Repetitive testing resulted in no loss of range of motion. There was no loss of muscle strength and the Veteran reported use of a cane to increase his mobility. X-ray evidence confirmed the presence of a screw in the right sacroiliac area and bone degeneration evidence of osteoarthritis. Notably however, the examiner reported that findings of the examination were solely based on the history given by the Veteran and were not confirmed or verified from records. Since that examination, the Veteran testified at his February 2018 Board hearing that his hip disorder has continually deteriorated. Hence, the Board finds that as to the hip disability and the circumstances surrounding the Veteran’s medical treatment since February 2014, another VA examination is warranted, and the issue is remanded for that purpose. Increased rating for a right knee strain with mild degenerative changes Following a February 2016 VA examination of the Veteran’s VA right knee the examiner reported that she could not render an opinion as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, without resorting to mere speculation. As a rationale for that conclusion she indicated that it would be speculative to render such an opinion. That rationale is deficient rendering the examination inadequate for rating purposes. Accordingly, the issue is remanded back to VA for another examination.   Individual unemployability The Board finds that a claim of entitlement to a total disability evaluation based on individual unemployability has been raised by the record. As previously noted, the issues of entitlement to increased evaluations for a hip disability and a knee disability are remanded. Given that the outcome of those increased rating claims may impact the appellant’s eligibility for a total disability evaluation based on individual unemployability, consideration of this claim is deferred, pending the outcome of those increased rating adjudications. The matters are REMANDED for the following action: 1. Obtain all outstanding, pertinent VA Medical treatment records to include records from the Ocala, Florida VA Community Based Outpatient Clinic since 2013. If the agency cannot locate these records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination with an appropriate clinician to confirm the existence and determine the etiology of any pelvic fracture residuals. The Veteran’s VBMS and Virtual VA/Legacy files., as well as a copy of this remand, must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran to include his description of the nature of any inservice pelvic disorder as reported by clinicians. If there is any clinical or medical evidence corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Following the examination the examiner must opine whether it is at least as likely as not that a chronic right sided pelvic disorder was demonstrated inservice, and whether it is at least as likely as not that any such current disorder was incurred inservice. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completing directive one, schedule the Veteran for an examination to access the current severity of his right hip strain with degenerative changes. The Veteran’s VBMS and Virtual VA/Legacy files., as well as a copy of this remand, must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right hip disability and discuss the effect of the Veteran’s right hip disability on any occupational functioning and activities of daily living. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. After completing directive one, schedule the Veteran with an appropriate VA examiner to determine the nature and severity of his right knee strain with mild degenerative change. The Veteran’s VBMS and Virtual VA/Legacy files., as well as a copy of this remand, must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The practitioner performing the VA examination must conduct range of motion testing, expressed in degrees. The examiner must address whether during the examination there is objective evidence of right knee pain on motion, weakness, excess fatigability, and/or incoordination. The examiner must discuss any functional loss during flare-ups or with repeated use. The examiner must offer an opinion addressing how right knee strain with degenerative change impacts the appellant’s ability to work. The examiner must address whether the Veteran’s right knee disorder is manifested by subluxation or lateral instability, and if so, to what severity (slight, moderate, or severe). Please also address whether there is evidence of a dislocated right knee cartilage. The examiner is to specifically test the range of active motion, passive motion, weight-bearing motion, and non-weight-bearing motion, and to test the range of motion in the opposite, left knee joint. If the examiner is unable to conduct the required testing or concludes that any testing is not possible or necessary in this case, he or she should clearly explain why that is so. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. After addressing all referred and remanded issues and assigning ratings and effective dates where appropriate, the claim of entitlement to a total disability evaluation based on individual unemployability must be adjudicated. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel