Citation Nr: 18157891 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 14-25 899 DATE: December 13, 2018 ORDER Entitlement to major depressive disorder as secondary to a skin disability is granted. Entitlement to a 60 percent rating for nummular eczema associated with dyshidrosis is granted. Entitlement to service connection for high cholesterol is denied. Entitlement to service connection for high triglyceride is denied. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. Entitlement to service connection for a back disability to include as secondary to a skin disability is remanded. Entitlement to service connection for hypertension to include as secondary to skin disability is remanded. Entitlement to diabetes mellitus to include as secondary to a skin disability is remanded. Entitlement to service connection for a bilateral leg disability to include as secondary to a back disability is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s major depressive disorder was caused by his service connected skin disability. 2. The Veteran’s nummular eczema associated with dyshidrosis manifests characteristic lesions involving more than 40 percent of his body. 3. High cholesterol is a laboratory finding and not a disability for which service connection may be granted. 4. High triglyceride is a laboratory finding and not a disability for which service connection may be granted. CONCLUSIONS OF LAW 1. The criteria for entitlement to major depressive disorder as secondary to a skin disability have been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for 60 percent rating for nummular eczema associated with dyshidrosis have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806 (2018). 3. The criteria to establish service connection for high cholesterol are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria to establish service connection for high triglyceride are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1976 to December 1976. 1. Entitlement to service connection for major depressive disorder as secondary to a skin disability There is no dispute that the Veteran has a diagnosis of major depressive disorder as noted in a June 2018 private examination report. Additionally, there is no dispute that the Veteran is currently service connected for a skin disability granted in a March 1977 rating decision. The only issue remaining is the nexus between the Veteran’s major depressive disorder and his service connected skin disability. On the matter of nexus, the Board finds that the June 2018 private opinion is probative. The examiner notes that the Veterans claims file, medical file, and statements were reviewed. He cites to specific instances of the Veteran’s mental health in relationship to the severity of his service connected skin disability, and he uses medical principles to explain how the Veteran’s skin disability has led to his major depressive disorder. In considering this evidence the Board observes the Court of Appeals for Veterans Claims has held that the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Considering this holding alongside the June 2018 private examiner’s opinion, the Board finds that all the elements of secondary service connection are met, and service connection for major depressive disorder is warranted. 2. Entitlement to an increased rating in excess of 10 percent for nummular eczema associated with dyshidrosis Upon review of the evidence and the Veteran and his spouse’s testimony, the Board finds that the Veterans skin disability involves more than 40 percent of his entire body. Under DC 7806, 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 be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. The objective medical evidence in the claims file indicates that in September 1989 the Veteran’s skin disability manifested with extensive coverage of his groin, back, buttocks, hands and feet. No percentage of body area was reported. In a October 2010 VA examination, the VA examiner reported that the Veteran’s skin disability manifested with a rash on his groin, inner thighs, and abdomen. In private treatment records from April 2013 to March 2018 the Veteran’s skin disability manifested with a rash on his abdomen feet, and groin. In a March 2014 VA examination, the examiner reported that the Veteran’s skin disability occurs over his entire body except his face. The VA examination at the time noted that the Veteran was not currently experiencing a flare-up. The Veteran and his spouse testified that they have observed the skin disability manifest around the Veteran’s groin, upper legs, buttocks, abdomen, arms, feet, back, and hands. The Board finds that this evidence provided by the Veteran is both competent and credible in terms of identifying the extent and location of the Veteran’s skin disability. In terms of competency, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board reasons that the Veteran’s skin disability by its very nature makes accurate examination extremely difficult. Thus, the Board must rely on the implicit evidence present in the Veteran’s VA examination and present throughout his treatment. Likewise, the Board acknowledges the importance of the Veteran’s credible testimony in which he provided his own observed account of his disability detailing locations on his body. In Ardison v. Brown, 6 Vet. App. 405, 408 (1994) the Court of Appeals for Veterans Claims (Court) has held that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. With this holding in mind and with interpretive and reasonable doubt resolved in favor of the Veteran, the Board finds that the symptoms of his skin disability more nearly approximate characteristic lesions involving more than 40 percent of the entire body throughout the pendency of the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. An initial 60 percent rating for his skin disability, the maximum schedular rating under DC 7806, is therefore warranted. The Board notes that the 60 percent rating is the highest provided under both the older Diagnostic Code 7806 rating criteria, and thus any further analysis regarding a comparison between the older and newer rating criteria would be unnecessary. 3. Entitlement to service connection for high cholesterol and high triglyceride. The Board acknowledges that there is no dispute that the competent medical evidence confirms the Veteran has elevated cholesterol. Nevertheless, elevated cholesterol represents a laboratory finding and is not considered a disability for VA purposes. In language provided in the Federal Register, VA noted that while Veterans were “receiving diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol.... [t]he diagnoses listed are actually laboratory test results, and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule to address.” See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). It is also pertinent to note that the term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, there is no indication that the Veteran’s elevated cholesterol and triglycerides are manifested by any impairment; the record does not reflect that a disability manifested by elevated cholesterol or triglycerides are causally or etiologically related to any disease, injury, or incident in service. Consequently, the Board concludes the Veteran’s claims of service connection for elevated cholesterol and triglycerides must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). This does not mean that the Veteran may not be service-connected for any disability that arises from his high cholesterol or triglycerides. To the contrary, this would be the correct avenue for him to be compensated if such a disability arises in the future. At present, however, the Board is not presented with this question as no disability has been demonstrated. Accordingly, entitlement to service connection for high cholesterol and high triglycerides are denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability is remanded. The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). 2. Entitlement to service connection for a back disability to include as secondary to a skin disability induced; service connection for hypertension to include as secondary to skin disability induced obesity; and service connection for diabetes mellitus to include as secondary to a skin disability induced obesity. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159 (c)(4). The threshold for establishing the third element is low for there need only be evidence that “indicates” that there “may” be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the above disabilities, the Veteran currently has a diagnosis of each of these disabilities. He is currently service connected for a skin disability. The Veteran contends that the above disabilities are causally related to his skin disability. Thus, the Board finds that the Veteran should be afforded a VA examination to determine if there is an etiological relationship between the above disabilities and the Veteran’s skin disability or any obesity induced by his skin disability. 3. Entitlement to service connection for a right leg disability to include as secondary to a back disability and service connection for a left leg disability to include as secondary to a back disability is remanded. The development requested in connection with the foregoing claims could have bearing on whether an award for the Veteran’s right and left leg is warranted. As the Veteran contends that his right and leg disabilities are related to his back disability and that his back disability is related to his obesity caused by his skin disability. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran’s response, VA treatment records should be collected from the Columbia, South Carolina VA Medical Center (VAMC) and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from March 2014 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examinations for his low back, hypertension, and diabetes mellitus. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. (A). The examiner should identify all low back disabilities present. For each identified low back disability, the examiner is asked to opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that the identified low back disability was caused or aggravated by his skin disability or is otherwise etiologically related to his active service. If the examiner determines that any of the identified low back disabilities are due to obesity, the examiner should address whether it is at least as likely as not that the Veteran’s service-connected skin disability contributed to the Veteran’s weight gain. (B) The examiner is asked to opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran’s hypertension was caused or aggravated by his skin disability or is otherwise etiologically related to his active service. If the examiner determines that the Veteran’s hypertension is due to obesity, the examiner should address whether it is at least as likely as not that the Veteran’s service-connected skin disability contributed to the Veteran’s obesity. (C) The examiner is asked to opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran’s diabetes mellitus type II was caused or aggravated by his skin disability or is otherwise etiologically related to his active service. If the examiner determines that the Veteran’s diabetes is due to obesity, the examiner should address whether it is at least as likely as not that the Veteran’s service-connected skin disability contributed to the Veteran’s obesity. (D) The examiner should identify all right and left lower leg disabilities present. For each disability identified, the examiner should opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any of the identified right and left lower leg disabilities were caused or aggravated by his skin disability or his back disability or are otherwise etiologically related to his active service. If the examiner determines that any of the Veteran’s lower leg disabilities are due to obesity the examiner should address whether it is at least as likely as not that the Veteran’s service-connected skin disability contributed to the Veteran’s obesity. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel