Citation Nr: 18155791 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-33 855 DATE: December 6, 2018 ORDER Entitlement to an initial compensable rating for folliculitis is denied. Entitlement to an effective date earlier (EED) than June 18, 2014 for entitlement to service connection for folliculitis is denied. Entitlement to an effective date earlier (EED) than June 18, 2014 for initial rating in excess of 20 percent for right leg radiculopathy is denied. Entitlement to an effective date earlier (EED) than June 18, 2014 for initial rating of 20 percent for sacroiliac joint pain syndrome is denied. Entitlement to an effective date earlier (EED) than June 18, 2014 for initial rating of 50 percent for sleep apnea is denied. Entitlement to an effective date earlier (EED) than June 18, 2014 for initial rating of 100 percent for PTSD is denied. REMANDED Entitlement to an initial increase rating in excess of 20 percent for sacroiliac joint pain syndrome is remanded. Entitlement to an initial rating in excess of 50 percent for sleep apnea is remanded. Entitlement to an initial increased rating in excess of 20 percent for right leg radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's folliculitis covered less than 5 percent of the entire body or less than 5 percent of exposed areas affected; and was not treated by topical or oral therapy during the past 12-month period. 2. The Veteran's claim for entitlement to service connection for folliculitis was received by VA on June 18, 2014. 3. The Veteran's claim for entitlement to service connection for right leg radiculopathy was received by VA on June 18, 2014. 4. The Veteran's claim for entitlement to service connection for sacroiliac joint pain was received by VA on June 18, 2014. 5. The Veteran's claim for entitlement to service connection for sleep apnea was received by VA on June 18, 2014. 6. The Veteran's claim for entitlement to service connection for PTSD was received by VA on June 18, 2014. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for folliculitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.118, Diagnostic Code 7820-7806 2. The criteria for an effective date earlier than June 18, 2014 for entitlement to service connection for folliculitis have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.102, 3.159, 3.400. 3. The criteria for an effective date earlier than June 18, 2014 for entitlement to service connection for sacroiliac joint pain have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.102, 3.159, 3.400. 4. The criteria for an effective date earlier than June 18, 2014 for entitlement to service connection for right leg radiculopathy have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.102, 3.159, 3.400 5. The criteria for an effective date earlier than June 18, 2014 for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.102, 3.159, 3.400]. 6. The criteria for an effective date earlier than June 18, 2014 for entitlement to service connection for PTSD have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110; 38 C.F.R. § 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 2003 until September 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2015 and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to an initial compensable rating for folliculitis Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. Therefore, in determining the level of current impairment, it is essential that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's folliculitis is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7820-7806. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, the use of Diagnostic Codes 7820-7806 reflects that the Veteran's folliculitis is rated as an infection of the skin not listed elsewhere in the diagnostic codes pertaining to the rating of skin disabilities codified at 38 C.F.R. § 4.118 under Diagnostic Code 7820 and that the rating assigned is based on the criteria for rating dermatitis under Diagnostic Code 7806. Notably, the criteria for rating skin disabilities were amended by VA on September 23, 2008. Those amendments were promulgated prior to the Veteran's claim, which was received by VA in June 2014, and are effective for claims filed, as in this case, on or after October 23, 2008. Accordingly, the amended version of the rating criteria will be applied in this case. Under Diagnostic Code 7820, infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Codes 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Under the criteria of Diagnostic Code 7806, dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable rating. Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating. Dermatitis or eczema warrants a 60 percent rating if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Additionally, Diagnostic Code 7806 indicates the disability can alternatively be rated as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7800 for burn scars, scars due to other causes, or other disfigurement, of the head, face, or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is for application when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. A maximum schedular 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are: a scar of five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (.6 centimeters) wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo-, or hyper-, pigmented in an area exceeding six square inches (39 square centimeters); abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); indurated and inflexible skin in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Note 1 following Diagnostic Code 7800. In October 2015, the Veteran was afforded a VA examination during which he was diagnosed as having folliculitis. The examination report noted the Veteran with a silver dollar sized area of mild plague with white papules located on the posterior hairline. The examiner noted that the Veteran had not been treated with topical or oral medication within 12 months prior to the examination. The Veteran's infection of the skin was found to affect less than 5 percent of the total body area and none of the exposed area, which included hand, face and neck. In light of the foregoing, the Board finds that the preponderance of the evidence is against a compensable rating for the service-connected folliculitis as a preponderance of the evidence is against a finding of involvement of least 5 percent of the entire body or of exposed area affected, or evidence that any intermittent systemic therapy is required as the Veteran has only been prescribed topical treatments. The Board has considered other potentially applicable diagnostic codes and finds no basis upon which to assign a compensable rating. Diagnostic Codes 7801 and 7802 do not apply because the Veteran does not have scars not of the head, face, or neck that are due to his folliculitis. Diagnostic Codes 7804 and 7805 do not apply because his scars are not unstable or painful, nor do they have any disabling effects that are not contemplated by Diagnostic Code 7806. Finally, the Veteran does not otherwise have diagnoses or symptoms that more closely approximate those necessary for ratings under Diagnostic Codes 7807 thru 7819 or 7821 through 7833. Additionally, the Veteran's folliculitis had not caused any characteristic of disfigurement and there is no indication that it imposes any loss of function or interferes with activities. As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms, or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In particular, a skin disorder is clearly a disorder that lends itself to lay observation. See McCartt v. West, 12 Vet. App. 164 (1999). However, the Veteran has not presented any statements that demonstrate that his disability is more severe than currently rated. In sum, the preponderance of the evidence is against a compensable disability rating for service-connected folliculitis. Effective Dates Legal Criteria The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). Entitlement to an effective date earlier (EED) than June 18, 2014 for entitlement to service connection for folliculitis; entitlement to an EED than June 18, 2014 for the initial rating of sacroiliac joint pain, right leg radiculopathy, PTSD, and sleep apnea The Veteran is seeking an effective date prior to June 18, 2014 for the award of service connection and initial disability ratings for the above disabilities. The claims folder reflects that in a claim received on June 18, 2014, the Veteran filed a claim of service connection for PTSD, sleep apnea, a skin condition (folliculitis), a lower back condition (sacroiliac joint pain), and a right leg condition (right leg radiculopathy). The Veteran's claims were granted service connection in the May 2015 and October 2015 rating decisions. As noted above, the effective date of an award based on claim for compensation (service connection) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a). While the Veteran contends that he is entitled to an earlier effective date prior to June 18, 2014, the claims folder reflects that the Veteran requested service connection for the issues was on June 18, 2014. (See June 18, 2014 Application for Disability Compensation and Related Compensation Benefits). As the claims for service connection was received on June 18, 2014, an earlier effective date is not warranted prior thereto. Based on the above, the Board finds that there are no statements by the Veteran which would entitle the Veteran to an earlier effective date for the issues on appeal. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to an initial increase rating in excess of 20 percent for sacroiliac joint pain syndrome is remanded. In regard to the Veteran's claim for entitlement to an increased rating in excess of 20 percent for sacroiliac joint pain, the Board is conscious of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board has reviewed the Veteran's VA examinations throughout the appeal period findings, namely the October 2015 VA examination report, and concludes that the findings associated with the report does not meet the specifications of Correia. Specifically, the examinations do not contain range of motion testing of the Veteran's lumbar spine in the areas of active motion, passive motion, in weight-bearing, and nonweight-bearing. Given this, the Board is not satisfied that the examination report findings are adequate for a contemporaneous rating. Retrospective medical evaluations are thus necessary under 38 C.F.R. § 3.159 (c)(4).] Entitlement to an initial increased rating in excess of 20 percent for right leg radiculopathy is remanded. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for an initial increased rating in excess of 20 percent for right leg radiculopathy while remanding the other issue on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board also finds that the Veteran's right lower extremity radiculopathy is intertwined with his overall lumbar spine disability and requires remand for current examination as well. Entitlement to an initial rating in excess of 50 percent for sleep apnea is remanded. The Board notes that the Veteran was not provided VA medical examination assessing the severity of his sleep apnea disability. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. In this case, without adequate medical examination assessing the Veteran’s sleep apnea current severity, the Board finds the current evidence to be insufficient to decide the claim. Therefore, a VA medical examination is required by VA's duty to assist the Veteran in developing evidence to substantiate his claim for an increased disability rating. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) who have provided treatment for sacroiliac joint pain, right leg radiculopathy, and sleep apnea, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for a VA medical examination to determine the current severity of his service-connected lumbar spine disabilities, to include any radiculopathy. The claims folder should be provided to the examiner in connection with the examination of the Veteran. For each affected joint, the examiner must address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If ankylosis is present, please so note. Any radiculopathy should also be addressed, including identifying the nerve involved and the degree of severity. The examination report must confirm that all such testing has been made and reflect those testing results. If any testing cannot be conducted, the examiner should clearly specify the reasons why that testing is not possible. All opinions must be supported by a detailed rationale in a typewritten report. 3. Schedule the Veteran for a VA medical examination to determine the current severity of his service-connected sleep apnea. The claims folder should be provided to the examiner in connection with the examination of the Veteran. 4. After completing the above and ensuring the VA examinations are adequate, complete any other development as may be indicated by any response   received as a consequence of the actions taken in the preceding paragraphs. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel