Citation Nr: 18157871 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-53 044 DATE: December 13, 2018 ORDER Entitlement to an initial compensable rating for cellulitis is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDING OF FACT The evidence is against finding that the Veteran’s cellulitis affects at least five percent or more of the entire body or exposed areas, or requires intermittent systemic therapy. CONCLUSION OF LAW The criteria for an initial compensable rating for cellulitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7801-7805, 7806, 7820 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military service from August 1968 to July 1970, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Increased Rating – Cellulitis The Veteran asserts that that he is entitled to a higher rating for his cellulitis as his symptoms are worse than those contemplated by the currently assigned rating. The Board notes that Diagnostic Code 7820 for infections of the skin not listed elsewhere instructs the rater to rate the disability pursuant to the General Rating Formula for the Skin. 38 C.F.R. § 4.118, Diagnostic Code 7820. At an April 2012 VA examination, the examiner diagnosed lower extremity cellulitis. The examiner reported that the Veteran developed cellulitis in his right leg following a 2006 coronary artery bypass graft procedure. Since that time, the Veteran had two other episodes of cellulitis that required antibiotic treatment, with the most recent having occurred in August 2010. The examiner noted that the Veteran’s cellulitis had affected both of his legs, but that no lesions were present at the time of examination. The examiner reported that the Veteran did not experience any systemic manifestations such as fever, weight loss, or hypoproteinemia. The Veteran reported that he had not used oral or topical medications in the past 12 months for his cellulitis. On examination, the examiner noted that no infection of the skin was present at that time. The examiner reported that the Veteran’s cellulitis did not impact his ability to work, and no other pertinent findings were noted. The Board finds that the Veteran is not entitled to an initial compensable rating for his cellulitis. In this regard, there is no indication from the record that the Veteran had any scaring related to his cellulitis. Moreover, the April 2012 VA examiner found that cellulitis did not affect at least five percent of the total body or exposed areas or require intermittent systemic therapy during any of the period on appeal. In fact, the Veteran had only experienced a total of three episodes of cellulitis, which appear to have resolved with a short dose of antibiotics. There is no indication from the record that the Veteran has required long-term use of medication for treatment of cellulitis, or that he requires any prophylactic treatment for cellulitis. 38 C.F.R. § 4.118, Diagnostic Codes 7800 – 7806, 7820. The Board acknowledges that the Veteran’s statement that he may be susceptible to developing cellulitis if he were to injure his leg or feet at some point in the future; however, the Board cannot rate a disability based on a hypothetical future occurrence. Rather, the Veteran may file a new claim for an increased disability rating if his symptoms worsen. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive a higher disability rating for his cellulitis based on the evidence as described above. See 38 C.F.R. § 4.118. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for cellulitis is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection - Sleep Apnea The Veteran asserts that he has sleep apnea that is related to his active service. Specifically, the Veteran has indicated that he first experiences symptoms that led to his later diagnosis of sleep apnea while he was in active service. A September 2013 private Disability Benefits Questionnaire (DBQ) report shows that the Veteran had a diagnosis of obstructive sleep apnea. To date, no VA medical opinion has been obtained with regard to the Veteran’s sleep apnea. In light of the Veteran’s reports of symptoms while in active service, and his current diagnosis of sleep apnea; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection – Hypothyroidism The Veteran asserts that he has hypothyroidism that is related to his active service. A September 2013 private DBQ report indicates that the Veteran had a diagnosis of hypothyroidism. Moreover, the post-service treatment records show that the Veteran had a total thyroidectomy procedure performed in March 1994. To date, no VA medical opinion has been obtained with regard to the Veteran’s hypothyroidism. In light of the Veteran’s report of symptoms of a thyroid disability while he was in active service, and the post service evidence of record showing a diagnosis of such, the Board finds the Veteran should be afforded a VA examination to determine the nature and etiology of his hypothyroidism. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s diagnosed sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that sleep apnea had its onset during the Veteran’s active service, or is otherwise etiologically related to such service, to include herbicide exposure sustained therein (notwithstanding the fact that it may not be a presumed association). The rationale for all opinions expressed must be provided. 3. Also, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s diagnosed hypothyroidism. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that a thyroid disability (or other endocrinopathy) had its onset during the Veteran’s active service, was present within a year of his separation from service, or is otherwise etiologically related to such service, to include herbicide exposure therein (notwithstanding the fact that it may not be a presumed association). The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel