Citation Nr: 20037532 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 12-23 957 DATE: June 2, 2020 ORDER Entitlement to an increased rating for a skin condition is granted. Entitlement to service connection for a liver condition is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. From April 2, 2009 through February 14, 2011, the Veteran’s diagnosed tinea versicolor, affected less than one percent of his entire body and exposed areas, and did not require corticosteroids or other immunosuppressive drugs. 2. Since February 15, 2011, the Veteran’s diagnosed mycosis fungoides, a form of non-Hodgkin’s lymphoma, has been active and required treatment. 3. In an April 2006 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a liver condition and notified the Veteran of its decision. The Veteran did not perfect an appeal, and the April 2006 decision became final. 4. The additional documentation submitted since the April 2006 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a liver condition. 5. The evidence of record is at least in equipoise as to whether the Veteran’s fatty liver disease began during active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from April 2, 2009 through February 14, 2011 for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813-7806. 2. The criteria for a 100 percent rating since February 15, 2011 for mycosis fungoides have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.117, Diagnostic Code 7715. 3. The April 2006 rating decision denying service connection for a liver condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. As new and material evidence submitted since the April 2006 denial has been received, the criteria for reopening the claim of service connection for a liver condition are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for service connection for fatty liver disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to June 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a hearing before a Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. These matters were previously remanded by the Board in September 2017. There was substantial compliance with the Board’s remand directives regarding the Veteran’s increased rating claim for mycosis fungoides, and service connection claim for a liver condition. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran’s claim of service connection for bilateral hearing loss is addressed below in the Remand portion of the decision. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to an increased rating for a skin condition The Veteran filed an increased rating claim for his service-connected skin condition on April 2, 2009. At the Board hearing, the Veteran testified that his skin condition has worsened. He explained that he has rashes that occur intermittently, but that over the years, the flares have lasted for longer lengths of time. He also reported undergoing phototherapy treatment, which causes itching and burning. The Veteran is in receipt of a 10 percent disability rating for his service-connected skin condition. Initially, the Veteran was diagnosed with tinea versicolor, and his skin disability was rated under Diagnostic Code 7813-7806. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. There is no specific Diagnostic Code for tinea versicolor. The condition is rated by analogy under Diagnostic Code 7813 for dermatophytosis. Diagnostic Code 7813 instructs that the condition be rated as disfigurement of the head, face, neck, scars, or dermatitis under Diagnostic Codes 7800 – 7806. Therefore, the Veteran’s condition was rated under Diagnostic Code 7806 for dermatitis. Medical records from February 15, 2011 show the Veteran’s correct diagnosis is mycosis fungoides, a form of non-Hodgkin’s lymphoma. Therefore, from April 2, 2009 through February 14, 2011, the Veteran’s skin disability will be assessed under Diagnostic Code 7813. From February 15, 2011, the Veteran’s skin disability will be rated pursuant to Diagnostic Code 7715, which addresses non-Hodgkin’s lymphoma. April 2, 2009 – February 14, 2011 VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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 assigned for 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 assigned for 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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 rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant 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 over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. The Veteran was afforded a VA examination in June 2009, during which he was noted to have a diagnosis of tinea versicolor. The examiner reported that the rash appeared on the Veteran’s chest, arms, and back. At the time, the Veteran did not report having any symptoms. His treatment included oral medications for itching and allergies, as well as a topical cream and shampoo. He could not recall how often he took his oral medications, but he reported using the topical cream and shampoo as needed. The Veteran’s rash covered zero percent of exposed areas, and less than one percent of his total body surface area. The Board finds that from April 2, 2009 through February 14, 2011, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s skin condition did not more nearly approximate 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. The June 2009 VA examiner determined that less than one percent of the Veteran’s entire body and exposed areas were affected. Though the Veteran reported taking oral medication for itching and allergies, he did not provide any information regarding the frequency or duration of the treatment. A review of the medical records fails to provide any additional information that would support an increased disability rating in excess of 10 percent prior to February 15, 2011. The Board also finds that from April 2, 2009 through February 14, 2011, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s skin condition did not more nearly approximate (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. As discussed above, the Veteran’s skin condition did not impact at least 20 percent of his entire body or exposed areas, nor does the evidence support a finding that he required systemic therapy for a total of 6 weeks during the previous 12 months. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 10 percent for his skin condition from April 2, 2009 through February 14, 2011. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. February 15, 2011 - Present Under Diagnostic Code 7715, non-Hodgkin’s lymphoma is rated at 100 percent with active disease or during the treatment phase. Six months after discontinuance of surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the condition should be rated on residuals. 38 C.F.R. § 4.117. Private medical records from February 2011 show the Veteran was diagnosed with mycosis fungoides T-cell lymphoma. The physician noted that the Veteran required phototherapy three times per week, as well as various ointments and creams. The Veteran was afforded a VA examination in November 2011. The VA examiner noted the Veteran’s prior diagnosis of tinea versicolor, as well as his diagnosis of mycosis fungoides. The Veteran treated has condition with ultraviolet phototherapy, antihistamines, and topical corticosteroids. VA dermatology treatment notes from June 2012 indicate that over the years, the Veteran’s rash spread to involve his neck, chest, arms, and inner thighs. His symptoms included itchiness and hyperpigmentation. He continued to require ultraviolet phototherapy treatment, along with topical creams. In January 2014, the Veteran attended another VA examination. The VA examiner discussed the improvement the Veteran experienced with his condition once he was correctly diagnosed with mycosis fungoides and started phototherapy treatment. However, he also noted that due to the nature of the Veteran’s type of lymphoma, there is no expected date of completion for treatment, as the natural course of skin lymphoma is recurrence. From February 2014 through June 2018, VA medical records show the Veteran continued to receive phototherapy treatment. At his most recent VA examination in October 2019, the VA examiner noted that mycosis fungoides is a type of non-Hodgkins lymphoma. The Veteran reported that he treated his condition with an at-home phototherapy machine, and topical steroid cream to reduce itching. The Board finds that since February 15, 2011, the Veteran has been entitled to a 100 percent rating for his service-connected skin condition pursuant to Diagnostic Code 7715. Under Diagnostic Code 7715, a 100 percent rating is warranted with active disease or during treatment phase. Since February 15, 2011, the Veteran has continuously required the use of ultraviolet phototherapy, a form of radiation, to treat his mycosis fungoides. Further, the January 2014 VA examiner explained that there is no expected date of completion for treatment because the Veteran’s type of lymphoma will continue to reoccur. After resolving all doubt in favor of the Veteran, the Board finds a 100 percent rating is warranted for the Veteran’s service-connected skin condition from February 15, 2011. Reopening Criteria A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. The petition to reopen the previously denied claim of entitlement to service connection for a liver condition The claim of service connection for a liver condition was denied in an April 2006 rating decision, and the Veteran was notified of the decision in a letter sent during the same month. He did not perfect an appeal and the decision became final. 38 C.F.R. § 3.156(b). On April 2, 2009, the Veteran requested to reopen the previously denied service connection claim for a liver condition. In an October 2010 rating decision, the RO denied reopening the Veteran’s claim, finding he had not submitted new and material evidence. Evidence submitted since the April 2006 rating decision includes medical records, and private and VA medical opinions. Given that the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the April 2006 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Thus, the claim of entitlement to service connection for a liver condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 3. Entitlement to service connection for a liver condition The Veteran seeks service connection for a liver condition, which he asserts began during service. At the February 2017 Board hearing, the Veteran testified that at service separation, he repeated bloodwork multiple times due to a faulty assumption that he failed to fast prior to testing, which resulted in abnormal liver function tests. He stated that immediately after his military discharge, he sought treatment from his primary care physician and was told that he had elevated liver enzymes. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board notes that in July 2009 and October 2009, attempts were made to obtain VA medical records dated between 1995 and 2002 from two VA medical centers. Unfortunately, the records are unavailable. VA and private medical records show the Veteran has a diagnosis of steatosis, also known as fatty liver disease. The earliest record within the claims file showing the Veteran’s diagnosis is dated January 2002. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2019 VA medical examination and opinion. The examiner opined that the Veteran’s liver condition was less likely than not incurred in or caused by military service. As rationale, the examiner stated that the Veteran’s service separation examination was silent for any liver conditions. The examiner also cited a January 2002 VA examination report, which determined the Veteran’s fatty liver disease was secondary to alcohol ingestion. The evidence in favor of the claim includes VA medical records from November 2002, which note that the most likely etiology of the Veteran’s liver condition is non-alcoholic steatohepatitis (fatty liver disease). VA treatment notes from November 2004 include liver biopsy results, showing the Veteran had moderate steatosis. The Veteran also provided a December 2006 medical opinion from Dr. J.A., the Veteran’s treating physician. Dr. J.A. stated the Veteran has elevated liver enzymes, which on biopsy done by the VA showed it was due to non-alcoholic steatosis. Dr. J.A. concluded that the Veteran’s liver condition began prior to his discharge from the military and that it should be considered as part of the Veteran’s disability profile. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current fatty liver disease was incurred in or related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a liver condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In September 2017 the Board remanded the Veteran’s service connection claim for bilateral hearing loss. Because the Veteran’s last VA audiology examination was in January 2010 and the examiner did not provide an etiology opinion, the Board instructed the RO to schedule the Veteran for a VA examination and to obtain a new VA medical opinion. An October 2019 Exam Scheduling Request Contention form shows the Veteran was scheduled for a VA examination, but he failed to appear. However, in a December 2019 statement, the Veteran stated he never received notification about his hearing loss examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim and the claimant does not subsequently provide good cause for his failure to do so, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Here, it is unclear from the record whether or not the Veteran received notice regarding his scheduled examination. Considering the above, and the fact that the Veteran has requested that his examination be rescheduled, the Board finds that the Veteran has presented good cause for failing to appear at his VA examination. The Veteran submitted March 2009 and April 2009 private audiograms (in graph form) in support of his claim. The data contained in the audiograms may suggest that the Veteran has bilateral hearing loss for VA purposes. However, the private audiometric testing reports do not indicate that the Maryland CNC word list was utilized for speech recognition testing, and thus, the results cannot be used to evaluate the Veteran’s hearing loss disability. 38 C.F.R. § 4.85. As such, a new VA examination is warranted. The Board emphasizes that the duty to assist is not a one-way street, and that failure to attend a VA examination may result in the denial of his claim. The matters are REMANDED for the following action: (Continued on the next page)   1. Schedule the Veteran for a VA examination to assess his hearing loss. The examiner is asked to review the claims file, including the Veteran’s service treatment records, 2010 VA examination report, and private audiology reports. 2. The examiner must provide an opinion as to whether the Veteran’s bilateral hearing loss is at least as likely as not (50 percent or greater probability) related to his in-service noise exposure with rationale referencing the record. All necessary testing should be completed for each examination, and a complete rationale for all opinions and conclusions should be provided. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate 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.