Citation Nr: 21001428 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 13-11 651 DATE: January 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for rosacea is denied. Entitlement to service connection for a head injury, claimed as a traumatic brain injury (TBI) is denied. REMANDED Entitlement to a compensable rating for fracture of the left little finger is remanded. Entitlement to service connection for a seizure disability is remanded. Entitlement to service connection for a cognitive disability is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s rosacea does not affect at least 20 percent of his entire body or exposed areas and has not been treated with systemic therapy. 2. The evidence fails to establish a current diagnosis of a TBI. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for rosacea have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7899-7806. 2. A head injury, claimed as a TBI, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran and his friend, K.B., testified before a Decision Review Officer. A transcript of the hearing is of record. These matters were previously before the Board in October 2016 and October 2018. In October 2018, the claims listed above and an additional claim for service connection for an acquired psychiatric disability were remanded for additional development. In an April 2020 rating decision, the RO granted service connection for an acquired psychiatric disability. This claim is no longer before the Board. Development was completed regarding the other issues and an April 2020 supplemental statement of the case was most recently issued. The claims are once again before the Board. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (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). 1. Entitlement to a rating in excess of 10 percent for rosacea. Effective August 13, 2018, VA revised the criteria for the evaluation of skin disabilities. 83 Fed. Reg. 32,592-601 (July 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. Under both the pre-August 2018 rating criteria and the post-August 2018 rating criteria, Diagnostic Code 7806 provides a 10 percent rating is assigned where there is involvement of 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating requires involvement of 20 to 40 percent of the entire body or 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 maximum rating of 60 percent requires involvement of 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. In Johnson v. Shulkin, the Federal Circuit distinguished between systemic therapy versus topical therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. 862 F.3d 1351 (Fed. Cir. 2017). In considering whether a treatment is systemic, the Board must also consider whether the treatment affects the body as a whole and whether the given treatment is like or similar to a corticosteroid or other immunosuppressive drug. See Burton v. Wilkie, 30 Vet. App. 286, 291 (2018). The post-August 2018 rating criteria clarify that systemic therapy includes, but is not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, and other immunosuppressive drugs. 38 C.F.R. § 4.118. A disability under Diagnostic Code 7806 may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7801-7805) depending on the predominant disability. 38 C.F.R. § 4.118. Here, on VA examination in May 2012, the Veteran was diagnosed with rosacea. It was noted that the Veteran’s skin disability did not cause scarring or disfigurement of the head, face, or neck. The VA examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months. The examiner also noted no other treatment such as PUVA, UVB, electron beam therapy, or intensive light therapy. The examiner noted no visible skin condition. At the Veteran’s August 2013 DRO hearing, he reported that his rash waxes and wanes in severity. He testified that during bad flare-ups, the rash goes from his face down to his neck, chest, and arms, and even gets in his eyes and around his hairline. The Veteran underwent an additional VA examination in October 2019. He was diagnosed with rosacea. He reported that his condition had worsened, and he was having more flareups and had redness of the face. He reported being embarrassed by his condition. The Veteran reported using Lubriderm, a topical product, for his rosacea. The examiner noted that his condition covered 5% to less than 20% of his total body area and less than 5% of his exposed area. The examiner noted that he observed an erythematous base with pustules, pimples, and small dilated blood vessels on his face, neck and upper chest. No scarring was noted. The Board has additionally reviewed hundreds of pages of treatment records. Increased symptoms have not been demonstrated. As a preponderance of the evidence supports that the Veteran’s rosacea affects less than 20 percent of the Veteran’s total body area and less than 20 percent of his exposed areas, and he is not treated with systemic therapy, a rating in excess of 10 percent under Diagnostic Code 7806 is not warranted. Further, no scarring or disfigurement has been noted to be a part of the Veteran’s rosacea such that a rating in excess of 10 percent is warranted under Diagnostic Code 7800-7805. As a preponderance of the evidence is against a rating in excess of 10 percent, the benefit of the doubt doctrine does not apply, and the claim must be denied. 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. 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Entitlement to service connection for a head injury, claimed as a TBI. The Veteran asserts that he has a head injury, to include a TBI, as a result of an assault in service. Service treatment records confirm that the Veteran was treated following a possible assault in August 1991. The Veteran’s service separation examination was completed prior to this assault. Post-service treatment records do not reflect a diagnosis of a TBI. In fact, Head CT scans in November 2003, January 2007, and December 2009 were normal, except for sinus related issues. The Veteran was initially afforded a May 2012 VA examination. The VA examiner determined that the Veteran did not have a TBI or any residuals of a TBI now or ever. The VA examiner considered that the Veteran had been attacked in 1991. The examiner noted that although he was assaulted in 1991, there is no clear record of a TBI diagnosis. The examiner stated that there are multiple conditions which can account for memory deficits noted in this exam, including seizures, a sleep disorder and Bipolar II condition. The Veteran was accorded an additional VA TBI examination in November 2019. The VA examiner noted that the Veteran did not have and had never had a TBI or any residuals of a TBI. The examiner considered the assault the Veteran experienced in 1991. The examiner noted that an ER report from August 1991 described facial lacerations and finger fractures, but no mention of neurologic issues. The VA examiner noted that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI. The VA examiner concluded that the Veteran did not have a diagnosis of TBI. In an accompanying medical opinion, the VA examiner noted that the Veteran’s symptoms and findings are more consistent with his reported psychiatric history rather than a TBI. He noted that there is no diagnosis for TBI. The Veteran has been separately service-connected for an acquired psychiatric disability; the rating is not before the Board at this time. The Board has also reviewed hundreds of pages of treatment records during the period on appeal. A diagnosis of a TBI is not provided in the treatment records. Service connection may not be granted without competent medical evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Based on a careful review of the evidence, the Board finds that service connection for a TBI is not warranted as there is no evidence in the record that the Veteran has been diagnosed with a TBI at any time during the appeal period. The May 2012 and November 2019 VA examiners conducted examinations, reviewed the Veteran’s treatment records and the results of diagnostic testing, and concluded that the Veteran does not have residuals of a TBI. The Board finds that the preponderance of the evidence weighs against a finding that the Veteran has a current diagnosis of a TBI. While the evidence reflects that the Veteran may have some medical training (records show he worked as a surgical tech and nursing assistant), as evidenced by his prior employment, the Board finds that his statements are outweighed by the more specific medical assessments that are based on history and the May 2012 and November 2019 VA examinations, which shows no current disability. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As there is no diagnosis of a TBI, service connection is not warranted. In addressing the probative evidence of record, the Board finds that the negative opinions of the May 2012 and November 2019 VA examiners, provided after reviewing the entirety of the claims file, are highly probative as they reflect consideration of all relevant facts. The examiners provided detailed rationale for the conclusions reached. Their conclusions are supported by the medical evidence of record, which includes service treatment records noting no objective neurological findings of a TBI and post-service treatment records documenting that the Veteran does not have a TBI. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no probative medical opinion of record to the contrary. Until recently, pain alone, without a diagnosis or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection could be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term disability as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain... [t]o establish the presence of a disability, the veteran will need to show that [his or her] pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In this case, the evidence does not show that the Veteran’s symptoms result in functional impairment per the Federal Circuit’s holding. Weighing against the claims are the May 2012 and November 2019 VA examination reports, which show no diagnosis of this claimed disability. Moreover, all examinations specifically noted that the claimed TBI did not impact the Veteran’s ability to work. The Board notes that some symptoms, including memory deficits, noted on the May 2012 examination to result in some functional impairment were not attributed to a TBI but rather other disabilities. Consequently, the Board finds that the evidence does not show that the Veteran’s complaints associated with his claimed TBI have caused functional impairment. Therefore, the Veteran’s symptoms do not constitute a disability for which service connection can be granted. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirements with regard to his claim for entitlement to service connection for a head injury claimed as a TBI. The benefit of the doubt doctrine is therefore not for application in this regard and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 3. Entitlement to a compensable rating for fracture of the left little finger. The Veteran was initially afforded an October 2012 Hand and Finger examination. The examiner noted that if the Veteran is experiencing joint related pain in this region, it was recommended that an MRI be completed to further evaluate his left hand. In an October 2016 Board remand, the Board found that an additional VA examination should be completed based on the Veteran’s contentions that his residuals of his left little finger had worsened. The Veteran reported that his grip had weakened, and he thought he may be starting to get arthritis. See DRO hearing testimony. Due to exam scheduling issues the Board once again remanded the Veteran’s claim in October 2018 to afford him an examination. Although an October 2019 VA Hand and Finger Conditions examination was provided, the VA examiner failed to complete diagnostic testing. It remains unclear if the Veteran has arthritis in his service-connected left little finger. The examination reflects complaints of pain and stiffness in his finger and reduced range of motion. In order to properly rate the Veteran’s service-connected disability an X-ray is needed to determine if he has arthritis. The Board finds that a remand is necessary to afford the Veteran necessary testing. 4. Entitlement to service connection for a seizure disability. With respect to his service connection claim for a seizure disability, the Veteran was most recently afforded an October 2019 VA Seizure Disorders examination. The Veteran was diagnosed with tonic-clonic seizures or grand mal epilepsy, with a diagnosis date of 2009. The examiner provided an adequate direct service connection negative etiological opinion. However, in providing her rationale, the examiner noted that the Veteran has been on various medications for his mental disorder that also have side effects of seizures. This statement raises the notion that the Veteran’s disability could be secondary to his now service-connected PTSD with bipolar II disorder. As such, an addendum opinion regarding secondary service connection is necessary. 5. Entitlement to service connection for a cognitive disability. Pursuant to the October 2018 Board remand, the Veteran was afforded an October 2019 VA examination to assess his cognitive disability. The VA examiner essentially determined that the Veteran did not have a cognitive disability and did not provide the requested medical opinion. The examiner did acknowledge that the VAX in 2012 had diagnosed a cognitive disorder. Although the October 2019 VA examiner noted that the Veteran did not have a current cognitive disability, she failed to adequately consider the Veteran’s cognitive disability diagnosed during the period on appeal. The May 2012 VA examination report notes a diagnosis of a cognitive disorder not otherwise specified. The Court has held that the presence of a disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA examiner did not provide the requested VA opinion regarding his claimed cognitive disability. Because the October 2019 VA examiner did not follow the remand instructions, an additional examination and opinion must be obtained. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Additionally, the Board notes that a May 2012 TBI VA examiner stated that “there are multiple conditions which can account for memory deficits noted in this exam, including seizure, sleep disorder, and Bipolar II condition.” The Veteran is separately service connected for PTSD with bipolar II disorder. The examiner’s statement raises a secondary service connection issue with respect to his claim for a cognitive disability. As such, an addendum opinion regarding secondary service connection is necessary. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected fracture of the left little finger. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary, including an X-ray, should be performed. The examiner must provide a full description of all signs and symptoms necessary for evaluating Veteran’s disability under the rating criteria. The examiner must comment on the functional effects of the disability evaluated. 2. Forward the Veteran’s claims folder to an examiner for an addendum opinion regarding the Veteran’s seizure disability and cognitive disability. The examiner is requested to review the claims folder, to include this Remand. Following review of the claims file the examiner must provide an opinion on the following: Seizure Disability (A) Whether it is at least as likely as not that the Veteran’s seizure disability was caused by his service-connected PTSD with bipolar II disorder, to include medications taken to treat this disability. (B) Whether it is at least as likely as not that the Veteran’s seizure disability was aggravated by his service-connected PTSD with bipolar II disorder, to include medications taken to treat this disability. Cognitive Disability (A) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s cognitive disability (diagnosed at any point during the period on appeal) had its onset during the Veteran’s active service. (B) Whether it is at least as likely as not that the Veteran’s cognitive disability was caused by his service-connected PTSD with bipolar II disorder. (C) Whether it is at least as likely as not that the Veteran’s cognitive disability was aggravated by his service-connected PTSD with bipolar II disorder. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should be returned to the Board for further appellate consideration, as appropriate. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.