Citation Nr: 21000536 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-31 088A DATE: January 5, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. A compensable rating for urethral warts, residuals from surgery is denied. REMANDED A rating in excess of 30 percent for unspecified depressive disorder prior to October 3, 2018 and in excess of 50 percent from that date is remanded. A rating in excess of 30 percent for migraine headaches is remanded. A rating in excess of 10 percent for pseudofolliculitis barbae is remanded. A rating in excess of 20 percent for penile deformity with erectile dysfunction is remanded. A rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux symptoms is remanded. A rating in excess of 10 percent for painful left foot dorsal surface scar, residual of laceration is remanded. A compensable rating for scar of the dorsal surface of the left foot (residual of laceration) is remanded. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) prior to October 3, 2018 is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. The Veteran's urethral warts do not affect at least 5 percent of the Veteran's entire body or exposed areas; and intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs has not been required for a total duration of less than six weeks during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a compensable rating for urethra warts, residuals from surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1983. He appeals for benefits denied in September 2011, July 2012, August 2012, July 2014, and January 2015 rating decisions. A request for a Board of Veterans' Appeals (Board) hearing was withdrawn in December 2017. The case was previously before the Board in May 2018, at which time it granted service connection for left foot dorsal cutaneous nerve damage; assigned an initial 30 percent rating for migraine headaches, remanded the matter of entitlement to an effective date prior to August 17, 2010 for special monthly compensation based on loss of use of a creative organ for the issuance of a statement of the case; and remanded the appeals for service connection for PTSD and for increased ratings for unspecified depressive disorder/generalized anxiety disorder, penile deformity, acid reflux, pseudofolliculitis barbae, urethral warts, scars of the left foot, migraine headaches, and TDIU to the agency of original jurisdiction (AOJ) for additional development. On remand, the AOJ awarded the Veteran the best effective date possible for the award of special monthly compensation for loss of use of a creative organ. Therefore, the Board is not taking jurisdiction over that matter. In addition, an April 2020 rating decision granted entitlement to a TDIU, effective October 3, 2018. Where the RO grants a TDIU that does not span the entire period on appeal and the Veteran has appealed from an underlying rating, the issue of entitlement to a TDIU for the remainder of the period remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). Accordingly, the TDIU issue has been recharacterized above. 1. Service connection for PTSD Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Based on the evidence, the Board concludes that service connection is not warranted for PTSD. The preponderance of the evidence is against a finding that the Veteran currently (at any time since the claim was filed in August 2010) has a diagnosis of PTSD. On VA psychiatric examination in July 2012, after examining the Veteran, the examiner indicated that the Veteran does not have a diagnosis of PTSD that conforms to DSM-IV. Instead, generalized anxiety disorder and panic disorder were diagnosed. The examiner indicated that the Veteran does not meet the full criteria for a diagnosis of PTSD. Criterion C and D for a diagnosis of PTSD were not met. The examiner indicated that the Veteran's depression, anxiety, and panic episodes are most likely caused by in service traumatic experiences, noting that the medical literature supports that exposure to traumatic episodes (in this case, suicides of two of the Veteran's friends) can lead to development of mood disorders. Additionally, in April 2019, a VA psychiatric examiner indicated that the Veteran only has one mental disorder that comports with DSM-5 criteria, and that it is unspecified depressive disorder with anxious distress, a progression of the Veteran’s service-connected anxiety disorder. A history of PTSD is reported in VA medical records, including in November 2018, but not a diagnosis. Additionally, the Veteran had negative PTSD screens, including in October 2018. Accordingly, the preponderance of the evidence is against a finding that the Veteran carries a current PTSD diagnosis. The United States Court of Appeals for the Federal Circuit has issued a precedential decision that holds a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), is required for compensation for psychiatric disabilities. Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. Aug. 11, 2020). In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). A compensable rating for urethra warts, residuals from surgery Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. 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 importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals for a compensable rating for his service-connected urethral warts, which are rated as 0 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806. This claim filed in August 2010. Diagnostic Code 7806 provides for a noncompensable rating when no more than topical therapy is required over the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema when 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 are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period. Pre-2018 regulations do not contain definitions for “topical therapy” or “systemic therapy.” Dorland's Illustrated Medical Dictionary defines topical as “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,” and defines systemic as “pertaining to or affecting the body as a whole.” Pursuant to August 2018 amendments to the rating criteria, 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). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. Old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Based on the evidence, the Board concludes that a compensable rating is not warranted for the Veteran's service connected urethral warts. The preponderance of the evidence indicates that they do not affect at least 5 percent of the Veteran's entire body, or at least 5 percent of exposed areas, and that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs has not been required at any time during the rating period, including during the past 12-month period. This evidence includes the July 2020 VA examination report, which indicates that less than 5 percent of the Veteran's total body area and no exposed areas are affected, and that the Veteran was not using any medication for the warts. The preponderance of the evidence is against granting the above appeals and there is no reasonable doubt to be resolved in the Veteran's favor concerning them. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board regrets that its decision could not be more favorable to the Veteran, and thanks him for his service. REASONS FOR REMAND The appeals for higher ratings for unspecified depressive disorder, migraine headaches, pseudofolliculitis barbae, penile deformity with erectile dysfunction, hiatal hernia with gastroesophageal reflux symptoms, left foot scars, and TDIU prior to October 3, 2018, are remanded. After the most recent (August 2020) supplemental statement of the case on the matters of increased ratings for psychiatric, headache, pseudofolliculitis barbae, penile deformity with erectile dysfunction, hiatal hernia with gastroesophageal reflux symptoms, and left foot scar disability, additional VA medical records pertinent to these claims were associated with the virtual file in September 2020, prior to the case being returned to the Board An SSOC must be furnished to an appellant and his/her representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. Accordingly, these matters must be remanded. As the matters are being remanded, updated VA medical records will be requested, and they too should be considered for these issues. The Board notes that remand is not required for the two issues decided above as the additional VA medical records were not pertinent to those claims and did not include any reference to treatment for PTSD or urethral warts. An appellate decision on the matter of entitlement to a TDIU will be deferred until after the remand, as favorable resolution of the other issues being remanded could affect the outcome of the TDIU appeal decision. The Board notes that following the Board's May 2018 remand of the matter of entitlement to a TDIU, the AOJ did not issue a supplemental statement of the case on the matter of entitlement to a TDIU before or after it awarded the Veteran a TDIU in April 2020 effective from October 3, 2018. That award did not resolve the matter of whether a TDIU is warranted prior to October 3, 2018, and so the latter matter remains on appeal. Accordingly, the matters are REMANDED for the following action: 1. Make arrangements to obtain any addition medical records of treatment which the Veteran has received for the disabilities at issue. 2. After the above development has been completed, issue a supplemental statement of the case which includes the issue of a TDIU prior to October 3, 2018, with consideration of the evidence received after the August 2020 supplemental statement of the case. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.