Citation Nr: 20022053 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-26 880 DATE: March 30, 2020 ORDER Entitlement to an initial compensable evaluation for staphylococcus infection is denied. (The issues of entitlement to service connection for a gastrointestinal disorder and a lumbosacral spine disorder are the subject of a separate decision.) FINDING OF FACT The staphylococcus infection has not been productive of clinical findings or symptoms in addition to those already considered in the Veteran’s other service-connected disabilities (that are all from his in-service penile injury/subsequent infections or are secondary to a disability for which service connection was established on a direct basis due to that in-service injury), including antibiotic use. CONCLUSION OF LAW The criteria for a compensable initial evaluation for staphylococcus infection have not been met. U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 6399-7816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to January 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). In an August 2012 decision, the Board granted service connection for staphylococcus infection. The agency of original jurisdiction (AOJ) effectuated the Board’s decision in the October 2014 rating decision, and the Veteran appealed the initial evaluation assigned. In July 2016, the Board remanded the case to schedule the Veteran for a hearing. The requested hearing was held before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; however, the Veteran did not submit any additional evidence during that time. The Veteran did later submit additional evidence, and he waived initial AOJ consideration of evidence received after the April 2016 statement of the case (SOC). See August 2018 Board waiver request letter and written response and September 2019 supplemental SOC (SSOC) (noted review of all evidence of record). The Board remanded the case for further development in November 2018. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Initially, the Board finds that VA’s duty to assist has been met as to obtaining outstanding VA treatment records and as to obtaining a VA examination or medical opinion. The AOJ secured updated VA treatment records. The Board also requested an additional VA examination because the Veteran had been provided multiple VA examinations in connection with his claims, including for other service-connected disabilities found to be related to his in-service injury/subsequent infections, but there did not appear to be a VA examination that focused on the rating criteria for evaluating the staphylococcus infection itself. The Veteran had also indicated that the disability had increased in severity. The Veteran was provided an adequate VA examination in July 2019 that fully addresses the rating criteria that are relevant to rating the disability in this case, particularly when viewed in conjunction with the lay and medical evidence of record. In addition, the Board notes that the Veteran’s copy of the September 2019 SSOC was returned as undeliverable; however, it was sent to his last known mailing address. See, e.g., VA treatment records from April 2019 (verified mailing address when issue with returned mailed medications) and August 2019 (same address). His representative also received a copy of the SSOC and provided responsive argument in a December 2019 written appellate brief. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (discussing presumption of regularity for official acts of public officers, absent clear evidence to the contrary) and Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applied presumption of regularity in Ashley to procedures at AOJ); Clarke v. Nicholson, 21 Vet. App. 130 (2007) (statement of non-receipt alone not sufficient to rebut presumption of regularity). Without evidence to the contrary, the Board finds that the AOJ properly discharged its official duties in mailing notification of the SSOC to the Veteran. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Fenderson, 12 Vet. App. at 126-27. In this case, a uniform evaluation is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks a higher initial evaluation for his service-connected staphylococcus infection. He has contended that the condition has affected various parts of his body and requires the use of antibiotics. See, e.g., April 2008 and August 2015 written statements; April 2017 Bd. Hrg. Tr. He is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 6399-7816 for a disability analogous to psoriasis. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The AOJ assigned the noncompensable evaluation effective from July 31, 1991, in the October 2014 rating decision. The rating criteria for skin disabilities in effect at that time did not include specific evaluation criteria under Diagnostic Code 7816 for psoriasis, but the disability was generally rated as analogous to eczema under Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable evaluation was warranted for psoriasis with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent evaluation was warranted for psoriasis with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation was warranted for psoriasis with constant exudation or itching, extensive lesions, or with marked disfigurement. A 50 percent evaluation was warranted for psoriasis with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or being exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Codes 7806 and 7816 (prior to August 30, 2002). The Board finds that there is no prejudice to the Veteran in deciding the case at this time, to the extent that the AOJ did not consider this version of the rating criteria or retroactive principles, given that the staphylococcus infection has not been productive of clinical findings or symptoms in addition to those already considered for the other service-connected disabilities, as discussed below. Effective from August 30, 2002, a noncompensable evaluation was warranted under Diagnostic Code 7816 for psoriasis affecting less than 5 percent of the entire body or exposed areas; and, no more than topical therapy required during the past 12- month period. A 10 percent evaluation was warranted for psoriasis affecting 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; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation was warranted for psoriasis affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or, systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation was warranted for psoriasis affecting more than 40 percent of the entire body or more than 40 percent of exposed areas; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Alternatively, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. See 67 Fed. Reg. 49590-49596 (July 31, 2002). The rating criteria for skin disabilities were amended again in relevant part effective from August 13, 2018. See 83 Fed. Reg. 32592-32601 (July 13, 2018). For the purposes of the current 38 C.F.R. § 4.118, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(a) and (b). Diagnostic Code 7816 should be evaluated under the General Rating Formula for the Skin (General Rating Formula, Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824), with complications such as psoriatic arthritis and other clinical manifestations (e.g., oral mucosa, nails) separately under the appropriate diagnostic code. Under the General Rating Formula, a noncompensable evaluation is warranted for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or, characteristic lesions involving less than 5 percent of exposed areas affected. Alternatively, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to Diagnostic Code 7824. A 10 percent evaluation is warranted for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of exposed areas affected; or, intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent evaluation is warranted for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or, systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent evaluation is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. The AOJ considered the provisions of the General Rating Formula when readjudicating the case in the September 2019 SSOC. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an initial compensable evaluation is not warranted for the Veteran’s service-connected staphylococcus infection. The record shows that the Veteran is separately service-connected for prostatitis, prostate stones, scar (tip of penis from chancroid infection), perimeatal skin tags, scar (base of penis, residual of abcess), and penile meatal (urethral) narrowing productive of an altered urinary stream – all from his in-service penile injury/subsequent infections or as secondary to a disability for which service connection was established on a direct basis due to that in-service injury. See 1992 to 2019 rating decisions and 2006 to 2018 Board decisions. The record also shows that the staphylococcus infection has not been productive of clinical findings or symptoms in addition to those already considered for his other service-connected disabilities, including antibiotic use. In this regard, the external skin involvement has been addressed in the service-connected penis scars (tip and base) and perimeatal skin tags; the Veteran has not been shown to have any other external skin disorder with physical manifestations under Diagnostic Code 7816 for the staphylococcus infection. The July 2019 VA examiner considered the Veteran’s overall medical treatment history, as well as his report of a prior penile infection/abcess that spread to the base of the penis, with residual scarring of the base and tip of the penis and without any more skin infections for quite a long time. On examination, she found normal skin except for the two residual scars, no infection, and no skin condition currently without any visible characteristic lesions at the time of examination. She also noted that the Veteran previously had a skin condition that was now completely resolved and no longer required treatment of any type. See also Board decisions from May 2006 (unappealed denial of claim for compensable evaluation for one scar) and August 2012 (withdrawal of claim for initial compensable evaluation for other scar); October 1993 VA scars examination report (noting mild scarring on tip of penis with rest of structure absolutely normal). As to the internal effects of the staphylococcus infection, the record shows that the infection has reoccurred in the prostate and has required the use of antibiotics. The Veteran is already service-connected for such manifestations, as service connection for prostatitis was granted by the Board in the May 2006 decision based on medical evidence showing that the Veteran had been diagnosed with recurrent or chronic staphylococcal prostatitis. See, e.g., January 1999 VA genitourinary examination report (diagnosis of chronic staphylococcal prostatitis with secondary prostatic calculi and chronic coagulase negative staphylococcal infection). The January 1999 VA examiner explained that it was likely that the meatal scarring subsequent to in-service silver nitrate burning did contribute to a urinary tract infection that resulted in a chronic staphylococcus infection of the prostate. The examiner also noted that the organism recovered after prostatic massage was resistant to multiple antibiotics and that it was reasonable to conclude that the many courses of antibiotics that the Veteran had received over the years did not result in eradication of the staphylococcus infection. Similarly, a June 1992 VA biopsy report was ordered to rule out infection in the prostate and shows focal lymphocytic prostatitis in one part of the prostate and neutrophilic and lymphocytic acute and chronic prostatitis in another part of the prostate. The July 2019 VA examiner also noted that the Veteran did not have a current staph infection of the genital area or prostate at that time according to current/recent records. In addition, the July 2019 VA examiner reviewed the June 1997 discharge summary for the Veteran’s appendectomy in which it was noted that that he was found to have a ruptured appendix and a subcutaneous abcess with bacteroides and a clostridium. The examiner indicated that those bacteria were typical bowel bacteria (i.e. not manifestations of the staphylococcus infection). A November 2014 VA peritoneal examiner provided a similar opinion, determining that the Veteran’s appendicitis was caused by a fecalith formation documented on the pathology report, and that the peritoneal adhesions were secondary to peritonitis caused by fecal bacteria, not staphylococcus, confirming that determination in a July 2019 VA clarifying medical opinion. The Board finds that the medical evidence of record showing the location of the internal staphylococcus infection manifestations to be more probative than the Veteran’s general assertions in this regard. See, e.g., June 2016 substantive appeal (Veteran believes infection spread to appendix); April 2017 Bd. Hrg. Tr. at 13 (Veteran testified that he had a staphylococcus infection throughout his body, either in his “lymphs or it’s gone to bone” and that “nobody’s [medical treatment providers] ever really addressed that issue”). In addition, the VA examiners confirmed the findings in the treatment records in their opinions based on their knowledge, training, and expertise. The prostatitis and penile meatal (urethral) narrowing evaluations also consider the functional effects of voiding dysfunction. See rating decisions from December 2014 and March 2019. Moreover, the Veteran has pending gastrointestinal and lumbosacral spine disorder appeals claimed as secondary to service-connected disabilities. Regarding the antibiotic use, the prostatitis and prostate stone evaluations are already based in part on antibiotic use. See, e.g., rating decisions from March 2007 (prostatitis) and October 2014 (prostate stones). The Board also notes that the Veteran withdrew his appeal for higher initial evaluations for prostatitis, to the extent that he may believe that the assigned evaluations are not adequate. See July 2016 Board decision. The medical evidence, as well as the Veteran’s own statements, support this finding as to antibiotic use in connection with prostate disability. See, e.g., VA treatment records from January 1991, April 1992, June 1992, March 1997, July 1998 (VA doctor written statement), January 2000 (noted encouraged to discontinue antibiotics in prior visits, but Veteran adamant that he continue on some form of antibiotic even with findings of no active disease), October 2005, April 2009, September 2009, January 2016 (plan for antibiotic dose for prostatitis treatment with testing in prostate), April 2017, November 2018, and August 2019 (continued treatment with historical chart review); March 2000 VA medical opinion; February 2009 VA genitourinary examination report (prostate examination where Veteran stated that symptoms were all due to staph infection he has had in his prostate for years); April 2017 Bd. Hrg. Tr. Most recently, the July 2019 VA examiner noted the diagnosis of chronic prostatitis and the Veteran’s reported prostate symptomatology, indicating that he did not have current antibiotic treatment, with only non-antibiotic prostate medications currently. Based on the foregoing, the Board finds that the weight of the evidence is against a compensable evaluation for the staphylococcus infection under Diagnostic Code 7816 in the absence of clinical findings or symptoms in addition to those already considered for the Veteran’s other service-connected disabilities, including antibiotic use. The rating schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims (Court) has held that pyramiding is disfavored “unless the regulation expressly provides otherwise.” Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) and 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition). The remaining appeal for the disorders claimed on a secondary service-connection basis will be addressed in the separately docketed appeal. Therefore, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.