Citation Nr: 1817281 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-28 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right lower leg mononeuritis, claimed as right leg numbness. 2. Entitlement to service connection for warts on feet and left leg. 3. Entitlement to an initial rating in excess of 30 percent for tinea versicolor. ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to June 2009. He is the recipient of the Combat Action Ribbon and Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2017, the RO increased the initial rating for tinea versicolor from 0 to 30 percent. This decision constitutes a partial grant of the benefits sought on appeal; therefore, this issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In December 2017, the RO also granted service connection for warts on the hands. As such, this matter is no longer before the Board. FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran has had a right lower leg mononeuritis disability during the entire appellate period. 2. The evidence of record is against a finding that the Veteran has had a foot or leg disability manifested by warts during the entire appellate period. 3. For the entire appeal period, the Veteran's tinea versicolor has not affected more than 40 percent of the entire body or exposed areas, or required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during an 12 month period during the period under review. CONCLUSIONS OF LAW 1. The criteria for service connection for mononeuritis of the right leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for warts of the feet and legs are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an initial rating in excess of 30 percent, for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.20, 4.21, 4.27, 4.118, Diagnostic Code 7813 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a letter provided in August 2009. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA fulfilled its duty to assist by obtaining VA and private (when releases were provided) treatment records. The record also contains numerous statements from the Veteran and VA examination reports from April 2017, September 2017, and September 2009. The examination reports, when considered in conjunction with the ongoing treatment records contained in the record provide adequate information such that the Board can determine the claims on appeal. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Under the relevant laws and regulations, 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, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A. Right Lower Leg Mononeuritis The Veteran generally contends that he has right lower leg mononeuritis that had its onset in, or is otherwise related to his military service. For the following reasons, the Board finds that the evidence is against a finding that a current disability exists. The Veteran's service treatment records reflect a complaint of strain of the right groin in April 2008. On his retirement examination in January 2009, decreased sensation to light touch of the distal right lower extremity was indicated. On report of medical history in January 2009, lower extremity distal numbness, with onset April 2008 following right groin/hamstring strain, was noted. Mononeuritis of the lower limb was noted in a subsequent March 2009 treatment report. The Veteran was afforded a QTC fee-based examination in September 2009. At that examiner, the Veteran reported that he had been diagnosed with mononeuritis, and the condition had existed for two years. On evaluation, there was no tingling, numbness, abnormal sensation, pain, weakness of the affected parts, or paralysis of the affected parts. The Veteran reported that his symptoms occurred constantly. The Veteran was not receiving any treatment and did not experience any overall functional impairment from the claimed condition. Neurological examination of the lower extremities revealed that motor and sensory function was within normal limits. Reflexes were 2+ for knee jerk and ankle jerk. Peripheral nerve involvement was not evident during examination. The examiner determined that there was no diagnosis because there was no pathology to render a diagnosis. The Veteran was afforded a subsequent VA examination in April 2017. At that examination, the VA examiner pertinently indicated after a full neurological evaluation that the Veteran's right leg was "normal." Although the examiner noted mild numbness of the right lower extremity, the examiner indicated that all lower extremity nerves were objectively normal. The examiner indicated that the Veteran reported symptomatic sensation of numbness of the lateral aspect of the right lower leg, but the examination was benign. There was no objective neurovascular or neurosensory deficits appreciated upon examination, and the examiner offered no specific diagnosis. In September 2017, VA obtained an etiological opinion addressing the Veteran's complaints of ongoing numbness, his in-service treatment for mononeuritis, and the ongoing normal clinical assessment of the Veteran's lower extremities. This examiner reviewed the entirety of the Veteran's service records, and acknowledged the Veteran's ongoing observations of numbness. Upon consideration of all the Veteran's medical history, test results, and lay assertions, the examiner found it "is less likely than not" that the Veteran's claimed right lower extremity mononeuritis is a current diagnostic condition of the lower extremity nervous system. The examiner explained that mononeuritis is defined as an asymmetrical acute or subacute involvement of single or multiple individual nerves that is confined to the peripheral nervous system with decrease sensory and/or musculoskeletal function. Upon review of the Veteran's service records, the VA examiner recognized the January 2009 report of medical examination, providing a subjective statement from the Veteran of decreased sensation, light touch, of the right lower extremity. The examiner observed that subsequent active duty service records, and medical notes were silent for follow-up right leg medical evaluation and treatment and/or complains, diagnosis, treatment, injury and/or events related to right lower extremity pathology, to include right leg mononeuritis. The examiner found it significant that the 2009 and 2017 peripheral nerve examinations were negative for any objective, medically or neurologically based clinical evidence of chronicity and/or continuity of mononeuritis of the right lower extremity. The examiner found that it was at least as likely as not that the Veteran's April 2008 in-service groin/hamstring strain was related to clinical self-limited and transient manifestations of right lower extremity numbness with activity (that resolved over time) without constitutional signs or symptoms related to pain, weakness and/or changes in deep tendon reflexes along individual peripheral nerve fibers. Because the active duty complaints were self-limited and transient symptoms related to a resolved and healed groin/hamstring strain, and because all neurological objective testing since service has normal, the examiner found it to be less likely than not that the Veteran had a current disability to include right leg mononeuritis. The Board finds that the opinion of the September 2017 VA examiner is thoroughly explained and fully supported by the evidence of record. To this end, the Board notes that the September 2017 examiner's opinion was based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the September 2017 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Veteran has had ample opportunity to obtain and submit medical evidence favoring a finding that he has a current neurological disability of the right leg that is related to service, and against the finding of the September 2017 VA examiner; he has not done so. The Board has considered the Veteran's lay statements, which are probative insofar as they report symptomatology capable of lay observation, see Layno v. Brown, 6 Vet. App. 465 (1994); however, the issue of whether he has a diagnosis of right lower leg mononeuritis that was caused or aggravated by service or an in service injury, is a complex medical matter that is, not capable of lay observation. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make such a diagnosis. Id., see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (A layperson . . . is generally not capable of opining on matters requiring medical knowledge). Thus, to the extent that the Veteran's statements are offered as proof of a right lower leg mononeuritis condition, his statements are not to be considered as competent evidence favorable to claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ("[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). In any event, the Board finds the medical opinions described above to be more probative than the Veteran's lay statements, as the opinions were offered by a medical professional after examination of the Veteran and consideration of the Veteran's history and reports, and the opinions are supported by clear rationale. Additionally the VA examiner noted that the Veteran's contentions were taken into account while he was formulating his opinion. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a lower right leg mononeuritis condition. Indeed, in the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) (2012) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim for service connection is denied. B. Warts on Feet, and Legs The Veteran contends that his feet and left leg wart disorders occurred in service and has persisted since that time. The Veteran's STRs show that he as noted to have warts on both hands in September 1986 but no treatment for warts of the left leg or feet were found. Additionally, no warts were identified during the Veteran's retirement examination. The Veteran was afforded a QTC fee-based examination in relation to this condition in September 2009. The Veteran described a wart condition that had existed for 15 years. He noted treatment with Compound W twice a week for one month in the past. Upon examination, the examiner offered no diagnosis because it was determined that the condition had resolved. In light of the Veteran's continued complaints of warts of the feet, left, leg and hands, the Veteran was afforded another skin examination in April 2017. The examiner diagnosed warts of the hand only. In September 2017, VA obtained an etiological opinion addressing the Veteran's complaints of lower extremity warts. This examiner reviewed the entirety of the Veteran's service records, and acknowledged the Veteran's statements. The examiner ultimately concluded that although the Veteran had a wart disability of the hands that was related to treatment for warts of the hand in service, a current wart disability (verrucoid lesions) has been shown to exist of the lower extremities. The examiner noted that the only mention of warts in the Veteran's service treatment records were on his hands in September 1986. He also acknowledged that the Veteran presented in February 1987, with a painful right fifth toe. The Veteran stated, "he has squeezed blood and pus from area". There was redness noted around the plantar aspect of the fifth toe. The diagnosis was foreign body. There was no diagnosis related to warts. The examiner noted that the prior medical records were reviewed with care and consideration. The records were silent for subjective and/or objective medically based, clinical evidence related to warts on the feet and/or legs. The examiner also noted that the April 2017 skin examination was negative for objective findings related to warts on the feet and/or legs. He noted that this observation was similar to the 2009 skin examination related to negative findings of verrucoid lesions related to the feet, legs and/or any other locations identified by the Veteran. Based on a review of the claims file, lay statements, and the Veteran's medical records the September 2017 examiner found, there was no objective evidence on either the September 2009 or April 2017 skin examinations, active duty and/or later period medical records to confirm verrucoid lesions on the legs and/or feet. Therefore, the examiner found, "it would be mere speculation to assume the etiology and nature of the Veteran's feet and leg (knee) disorders because of a lack of any objective, medically-based, clinical evidence for lower extremity warts." The Veteran has had ample opportunity to obtain and submit medical evidence favoring a finding that he has a current wart disability of the legs or feet that is related to service, and against the finding of the September 2017 VA examiner; he has not done so. The Board finds that the findings of the September 2017 VA examiner were thoroughly explained and fully supported by the evidence of record. To this end, the Board notes that the September 2017 examiner's opinion was based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the September 2017 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board has also considered the Veteran's lay statements, which are probative insofar as they report symptomatology capable of lay observation. The Veteran is certainly competent to attest to having skin abnormalities of the leg. Indeed, as discussed below, he has described ongoing skin rash problems related to tinea versicolor that have been service-connected and afforded a 30 percent rating. While the presence of a wart disability (verrucoid lesions) is arguably something a layperson can observe, the Board finds the medical opinion evidence of record finding no objective evidence of a chronic wart disability affecting the lower extremities at any time during service, or since service, to be more probative that the Veterans assertions that he experiences a chronic wart disability of the lower extremities and feet. The medical examiners are trained professionals who physically examined the Veteran's skin, and found no evidence of a chronic disability. The Veteran has not provided any photographs, or records of treatment from VA or private care that would lessen the probative value of the medical opinions of record. Notably, the VA examiner indicated that the Veteran's contentions were taken into account while he was formulating his opinion. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a wart condition of the left leg and foot. As above, in the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) (2012) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim for service connection is denied. II. Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2017), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2017). The Veteran's tinea versicolor has been evaluated as 30 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806-7813 (2017). The Board notes that the Veteran's tinea versicolor is evaluated under Diagnostic Code 7813 for dermatophytosis, which includes various tinea infections. Diagnostic Code 7813, however, directs that such disorders be rated as disfigurement of the head, face, or neck, scars, or dermatitis, depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2017). Here, the predominant manifestations of the Veteran's tinea versicolor symptoms are akin to dermatitis rather than disfigurement or scars. Therefore, the Veteran's tinea versicolor is evaluated under the rating criteria for dermatitis, as contemplated by Diagnostic Code 7806. Diagnostic Code 7806 provides a non-compensable rating when less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected; and, no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted when the skin disorder involves 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, 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. A 30 percent rating is warranted when the skin disorder involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas 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. A 60 percent rating is warranted when the skin disorder involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The Veteran contends that his tinea versicolor disability warrants a rating in excess of 30 percent disabling. The Veteran was given a VA examination in September 2009. During the September 2009 VA examination, the Veteran reported that he experienced symptoms from his tinea versicolor intermittently (once per year) and the symptoms affected his face, back, chest, legs, arms, buttocks, and groin. However, the examination was not shown to take place during a flare, and the Veteran was assigned an initial noncompensable (zero percent) rating based on these examination results. Based on the Veteran's competent and credible reports of spreading of his skin disability to all parts of this body, the Board remanded this issue for an examination to be conducted during one of the Veteran's outbreaks to determine if a compensable rating was warranted. The Veteran was afforded another examination in April 2017 but that examination was not conducted during a flare-up nor did it give an approximation of the Veteran's condition during a flare-up. The Veteran was given another examination in November 2017. Although the examiner was not able to conduct an examination during a flare-up, she was able to estimate the Veteran's condition during a flare-up based on the Veteran's description and review of medical history. The examiner estimated that during a flare-up the condition would involve approximately 20 percent of the body. The Veteran reported that his condition flares ups once a year during the summer months when it gets triggered by heat and sweat. He described developing a rash of white patches that affects the back and upper arms. He has been prescribed a "shampoo" which he uses as needed. He reported that the shampoo is effective about 80 percent of the time, and he uses it daily during the summer months. The examiner found that the Veteran was treated with topical medication but they were not systemic corticosteroids or other immunosuppressive medication. She also found that that the total duration of the medication treatment was not was constant/near constant. There were no treatments or procedures other than systemic or topical medications in the 12 months prior to the examination for exfoliative dermatitis or papulosquamous disorders. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. The Board notes that when a disability presents active and inactive phases, it is the duty of VA to evaluate the condition during the active phase if possible. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In this case, the short period of exacerbations tends to make the effort to examine the Veteran during an active period impractical. Therefore, given the examiner's opinion that approximately 20 percent of the total body is involved during the active phase is based on the descriptions given by the Veteran, the intent of the Board's remand has been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). In this case, the evidence does not show that the Veteran was prescribed any medication other than a topical cream or shampoo to treat his tinea versicolor. Moreover, the VA examination reports indicate that his skin disability affected 20 percent of his total body area when during an active phase, and that this estimation was based largely on the Veteran's own competent and credible reports. There is no evidence demonstrating that the Veteran's skin disabilities involve more than 40 percent or more of his total body or exposed areas. In addition, there is no evidence documenting treatment with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs at any time during the appeal period. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (finding that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.'"). Thus, the Board concludes that the evidence regarding the Veteran's symptomatology and treatment does not show that his tinea versicolor symptoms more nearly approximate the assignment of 60 percent rating at any point during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent disabling for tinea versicolor. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right lower leg mononeuritis, claimed as right leg numbness, is denied. Entitlement to service connection for warts on the feet and left leg, is denied. Entitlement to an initial rating in excess of 30 percent for tinea versicolor, is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs