Citation Nr: 1815221 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-18 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disability of the chest and arms. 2. Entitlement to an initial disability rating in excess of 20 percent prior to December 4, 2016, and thereafter, a disability rating in excess of 60 percent, for interstitial cystitis. 3. Entitlement to an initial disability rating in excess of 10 percent for paradoxical vocal cord motion. REPRESENTATION The Veteran represented by: John Berry, Attorney at Law ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2005 to June 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the April 2014 substantive appeal (VA Form 9), the Veteran waived her right to a Board hearing. The undersigned Veterans Law Judge has been assigned to this appeal pursuant to 38 C.F.R. § 19.3(a). These matters were previously before the Board in January 2016, at which time they were remanded for further evidentiary development. The RO obtained updated VA treatment records and associated them with the electronic claims file. In a March 2016 letter, the RO requested that the Veteran complete a medical records release authorizing VA to obtain medical records from Dr. G. Parr, as well as any other private physicians who provided treatment relevant to her claims. The Veteran did not respond to this letter, which was sent to the correct mailing address at that time. Additionally, the RO obtained the requested VA examinations. Having reviewed the record, the Board finds that the RO has substantially complied with the January 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Due to this additional evidentiary development, the RO issued a rating decision in October 2017, increasing the Veteran's service-connected interstitial cystitis from 20 percent disabling to 60 percent disabling, effective December 4, 2016. However, given the potential for a higher rating under 38 C.F.R. §§ 4.115a and 115b for dysfunctions and diagnoses of the genitourinary system, this increase is not a full grant of the benefit sought and the matter remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993)("a claim for an original or an increased rating... remains in controversy when less than the maximum available benefit is awarded"). FINDINGS OF FACT 1. The record fails to establish that the Veteran experiences a current skin disability etiologically related to her period of active duty military service. 2. Prior to December 4, 2016, the evidence does not show that the Veteran's interstitial cystitis required the wearing of absorbent materials that must be changed 2 to 4 times per day, nor was her condition manifested by daytime voiding intervals of less than one hour; and she was not awakened to void 5 or more times per night. 3. Since December 4, 2016, the evidence shows the Veteran's interstitial cystitis requires the wearing of absorbent materials which must be changed more than 4 times per day. 4. With regard to service-connected paradoxical vocal cord motion, the Veteran complains of intermittent hoarseness and coughing, but there is no objective evidence of abnormal findings such as thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disability of the chest and arms are not met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Prior to December 4, 2016, the criteria for an initial evaluation in excess of 20 percent for interstitial cystitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a , 4.115b, Diagnostic Code (DC) 7512 (2017). 3. Since December 4, 2016, the Veteran has been in receipt of a 60 percent evaluation for interstitial cystitis, the highest schedular rating for this disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.115a , 4.115b, DC 7512 (2017). 4. The criteria for an initial evaluation in excess of 10 percent for paradoxical vocal cord motion are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.97, DC 6516 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. I. Duties to Notify and Assist Neither the Veteran nor her attorney has raised any specific issues or concerns with the duty to notify or the duty to assist in obtaining documentary evidence. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Regarding VA's duty to assist in providing VA examinations, the Veteran has alleged that the October 2010 VA examination is inadequate because the VA examiner took a phone call during the course of the examination. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47(Fed. Cir. 2004) ("The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. Here, the Board finds that the presumption of regularity has not been rebutted. The VA questionnaire completed by the examiner clearly indicates that the examiner performed an in-person examination, reviewed the Veteran's medical records, and answered all inquiries relevant to determining the appropriate schedular rating for the Veteran's claims. Moreover, there is no indication of bias on the part of examiner as she documented the Veteran's reported physical symptoms in detail and in an objective manner. While the Board has no reason to doubt the Veteran's claim that the VA examiner engaged in a phone call during the course of the examination, there is no evidence in the record to suggest that this factor somehow affected the integrity of the VA examination. Accordingly, the Board finds the October 2010 VA examinations adequate for adjudication purposes. The Veteran has not raised any contention that the December 2016 VA examinations are inadequate. The Board's independent review of these VA examinations reveals that the examiners reviewed the relevant evidence of record, engaged in an in-person interview with the Veteran, and conducted a comprehensive physical examination of the areas of the body relevant to the Veteran's claims. Accordingly, the Board concludes the December 2016 VA examinations are also adequate for adjudication purposes. II. Service Connection Claim Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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 be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Veteran contends that she developed a skin rash on her chest and arms while serving in Iraq from June to August 2007. See January 2011 Notice of Disagreement. She explained to the October 2010 VA examiner that she broke out in a rash while in the desert and was treated with antihistamines and shampoo. However, the Board observes that in a July 2007 post-deployment health assessment, the Veteran answered NO to the question of whether she experienced any skin diseases or rashes during deployment. Additionally, the Board could find no evidence of antihistamine or shampoo treatment for dermatitis in the Veteran's service treatment records. Curiously, at the December 2016 VA examination, the Veteran reported her alleged in-service skin disability arose due to exposure to harsh chemicals as part of her Air Force job duties, but did not mention that her disability began during deployment to Iraq, as previously purported. This inconsistency in the Veteran's allegations diminishes the probative value of her lay statements. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). Here, the evidence fails to establish that the Veteran experiences a current skin disability etiologically related to her active duty service. Review of the Veteran's service treatment records shows numerous clinical examinations where her skin was noted as normal or free of rashes, lesions, or pruritus. In fact, on several occasions covering the period of the Veteran's active duty service, she affirmed that she was not experiencing skin problems. See e.g., October 2006, July 2007 notations. In a June 2010 treatment record, contemporaneous with the Veteran's separation from active duty, her skin was noted as normal, with no pruritus, lesions, rashes, or ecchymosis. The only skin abnormalities noted in the service treatment records are acute episodes of facial acne in Winter 2007 and a single subjective report of dermatitis secondary to contact with harsh chemicals recorded in July 2009. The Veteran is already service-connected for acne vulgaris. There is no evidence of a chronic, diagnosed skin disability during the Veteran's period of active duty; the dermatitis incident in 2009 was clearly acute as there was no subsequent treatment or complaints. Likewise, the documents supporting the Veteran's June 2010 medical duty review board action medically discharging the Veteran due to her vocal cord disability contain no mention of the symptoms of a skin disability. Finally, at the December 2016 VA examination, it was noted that the Veteran had systematic lupus erythematosus (SLE) resulting in a lupus rash on both cheeks. The examiner opined that the Veteran's SLE was less likely than not incurred during military service as the Veteran's service treatment records were absent for the presence or diagnosis with SLE in service. Thus, to the extent that the Veteran's current SLE has resulted in a skin disability, it is not etiologically related to the Veteran's service. In light of the above, the Board concludes that the record lacks sufficient, probative medical evidence establishing that the Veteran incurred a chronic skin disability while serving on active duty. Consequently, in the absence of an in-service incurrence of disease, the Veteran's service connection claim must be denied. III. Increased Rating Claims A. Interstitial Cystitis Prior to December 4, 2016, the Veteran's service-connected interstitial cystitis was rated at 20 percent disabling under DC 7512. To warrant a higher rating, the evidence must show, at a minimum, that the Veteran's disability required her to wear absorbent materials which much be changed 2 to 4 times per day; that her daytime voiding interval be less than one hour; or that she awoke to void 5 or more times per night. There is no evidence in the record establishing that the Veteran experienced renal dysfunction, urinary tract infections, or obstructed voiding during the time period considered. The Veteran was afforded a VA examination in October 2010, close in proximity to the end of her active duty service and the filing of this claim, to assess and evaluate the severity of her interstitial cystitis. It was documented that the Veteran experienced urinary leakage requiring the wearing of absorbent materials that must be changed less than 2 times per day. It was further noted that the Veteran's daytime voiding interval was 1 to 2 hours commensurate with the currently assessed 20 percent evaluation. The Veteran experienced nocturia limited to 4 voidings per night. Based on these examination results, the Veteran's interstitial cystitis was correctly rated at 20 percent disabling under the schedular criteria found in 38 C.F.R. § 4.115a. Pursuant to the examiner's findings, the Veteran did not experience neoplasms, obstructed voiding, or hydronephrosis, which could have potentially warranted a more advantageous rating under a separate DC. As the only pertinent evidence of record reviewing the Veteran's disability in conjunction with the rating criteria, the Board finds the October 2010 VA examinations to be highly probative. The Board has considered the Veteran's lay assertions that her interstitial cystitis resulted in the use of absorbent materials that must be changed 2 or more times per day and that she experienced nocturia 5 or more times per night. See January 2011 Notice of Disagreement. However, there is no corroborating objective medical evidence in the record to support these assertions. In fact, review of the Veteran's service treatment records and VA treatment records fails to yield any information relevant to assigning the Veteran a higher evaluation under the rating schedule. Despite requests from VA, the Veteran never provided her private urology records or signed the requisite authorizations that would allow VA to obtain these relevant treatment records. Since determining the degree of the Veteran's impairment hinges on evaluation of the clinically significant symptoms and criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records, or lack thereof, and objective examinations by medical professionals over the Veteran's lay statements. In light of the above, the Veteran's service-connected interstitial cystitis is correctly rated at 20 percent under 38 C.F.R. §§ 4.115a, 4.115b for the period prior to December 4, 2016. The Veteran's request for a higher rating must be denied. Since December 4, 2016, the Veteran has been in receipt of a 60 percent evaluation for her interstitial cystitis, which is the highest schedular rating available under DC 7512. This conclusion was based on the December 2016 VA examination results which established that the Veteran's condition required the use of absorbent material which must be changed more than 4 times per day. The VA examiner found that this increase in the severity of the Veteran's disability began on December 4, 2016, the date of the examination. There is no evidence in the record to suggest that the Veteran's disability reached this level of severity prior to the date identified by the VA examiner. Again, she did not authorize VA to obtain her private medical records, so there is no medical evidence dated prior to the VA examination which would factually show a different date that her disability worsened. The rating schedule provides for an evaluation in excess of 60 percent only for renal dysfunction, postoperative suprapubic cystotomy, multiple urethroperineal fistulae, malignant neoplasms of the genitourinary system, or following a kidney transplant. 38 C.F.R. §§ 4.115a, 4.115b, DCs 7516, 7519, 7528, 7531 (2017). None of the foregoing conditions are ones from which the Veteran suffers, and an evaluation in excess of 60 percent for the service-connected chronic interstitial cystitis cannot be granted. 38 C.F.R. §§ 4.115a, 4.115b, DC 7512 (2017). In sum, there is no evidence to support a higher disability rating for interstitial cystitis than those already provided during the relevant time frames on appeal. Accordingly, the Veteran's claim for increased ratings must be denied. B. Paradoxical vocal cord motion The Veteran is currently assessed with a 10 percent evaluation for service-connected paradoxical vocal cord motion under DC 6516. The Veteran's service treatment records establish that she was diagnosed with vocal cord dysfunction while in service due to chemical irritants at her duty station. This disability was manifested by throat irritation, dryness, and dry cough while at work. Service treatment records confirm that the Veteran was "completely asymptomatic" except for when she reported to work and was re-exposed to chemical irritants. There is no evidence of vocal cord thickening, nodules, polyps or submucous infiltration of the vocal cords in the Veteran's service treatment records. The Veteran was afforded a VA examination in October 2010 where the VA examiner recorded a diagnosis of paradoxical vocal cord motion. Physical examination of the soft palate, sinuses, pharynx, and nasopharynx were normal. While the Veteran reported intermittent hoarseness, none was observed at the time of the examination. The Veteran was afforded a second VA examination in December 2016 to assess the nature and severity of her disability. Upon examination, the VA examiner found evidence of hoarseness but no inflammation of vocal cords or mucous membranes, no thickening or nodules of vocal cords, no submucous infiltration of vocal cords, and no vocal cord polyps. The examiner did not assess the Veteran with any other disability recognized under 38 C.F.R. § 4.97, DCs 6502 to 6524, that would better represent the Veteran's symptomatology. The Veteran's treatment for this condition since service shows that this disability is manifested by no worse than intermittent hoarseness and coughing. There is no objective evidence of record establishing that the Veteran has experienced thickening or nodules of her vocal cords; polyps or submucous infiltration of vocal cords; or pre-malignant changes on biopsy. Simply stated, the Veteran's disability is best evaluated under DC 6516 as her disability affects the larynx, but there is no objective evidence establishing that the she meets the schedular criteria for a rating higher than her currently assessed 10 percent evaluation throughout the appeals period. Accordingly, her increased rating claim must be denied. IV. Conclusion The evidence of record fails to establish that the Veteran experiences a current skin disability of the chest and arms causally related to her active duty service. Additionally, the evidence does not warrant ratings for her service-connected interstitial cystitis and paradoxical vocal cord motion disabilities higher than those already awarded throughout the period on appeal. In adjudicating these claims, the Board has considered the doctrine of reasonable doubt. However, as a preponderance of the evidence is against the claims, there is no doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claims on appeal must be denied. ORDER Entitlement to service connection for a skin disability of the chest and arms is denied. Entitlement to an initial disability rating in excess of 20 percent prior to December 4, 2016, and thereafter, a disability rating in excess of 60 percent, for interstitial cystitis is denied. Entitlement to an initial disability rating in excess of 10 percent for paradoxical vocal cord motion is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs