Citation Nr: 21001563 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-22 863A DATE: January 8, 2021 ORDER An initial rating in excess of 10 percent for rosacea is denied. Service connection for hypertension is denied. Service connection for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1984 to May 1988. 2. The Veteran’s skin disability has been manifested by subjective complaints redness of the face and breakout of pimples; objective findings include constant or near-constant treatment with topical medications, between 5 percent and 20 percent of the exposed body area affected, and between 5 percent and 20 percent of total body area affected. 3. Hypertension was not shown in service, not shown to a compensable degree within one year of service, symptoms were not continuous since service, and it is not causally or etiologically related to service. 4. The Veteran complained of recurrent low back pain during service; a chronic back disorder, currently diagnosed as degenerative disc disease (DDD), spondylolisthesis and associated right lower extremity and left lower extremity radiculopathy, was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current back disorder is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for rosacea have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Codes (DCs) 7899-7806 (2020). 2. Hypertension was not incurred in service or presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). 3. A low back disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2018, the Board denied service connection for a low back disorder and remanded the appeal for hypertension. The Veteran appealed to the Veterans Claims Court. In May 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the portion of the July 2018 decision that denied service connection for a low back disorder, and remanded the case to the Board for action consistent with the terms of the JMPR. In October 2019, the Board remanded the issues of service connection for a low back disorder for additional development. In January 2020, the Board remanded the issues of a low back disorder, hypertension, and an increased rating claim for rosacea for additional development. The case has now been returned to the Board for further appellate action.   Increased Rating Claim for Rosacea 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. Service connection for rosacea was granted in April 2018 and assigned an initial 10 percent rating, and the Veteran disagreed with the rating assigned. The skin disorder is rated under DC 7899-7806. VA amended the criteria for rating the skin. Under the revised criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “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.” DC 7806 is rated under the general rating formula for the skin. Under the revised general rating formula, a 30 percent rating is warranted where at least one of the following is present: characteristic lesions involving 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, psoralen with long-wave ultraviolet-A light (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 maximum 60 percent rating under this formula requires 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In this case, the Board finds that a rating in excess of 10 percent rating under DC 7899-7806 is not warranted throughout the appeal period. Specifically, in a March 2018 disability benefits questionnaire (DBQ), the Veteran reported erythematous lesion on the cheeks, perioral area and sometimes the upper back. He reported symptoms while in service, but lesions were diagnosed as acne and he was treated with Retin A and Tetracycline which did not resolve the problem. He continued to experience lesions with periods of remission and flare ups. The Veteran noted treatment with different topical creams and oral medications. Specifically, he was noted to be using Minocycline for 6 weeks or more but not constant and Noritate 1% cream constant or near constant. The clinician found that the Veteran’s skin disability did not cause scarring or disfiguring of the head, face, or neck and that it affected between 5 and 20 percent of the total body area and between 5 and 20 percent of the exposed body area. In a subsequent July 2020 DBQ, the Veteran reported experiencing redness of the face and breakouts of pimples. The examiner diagnosed rosacea and indicated that rosacea of the face caused red areas with small pimples and that ocular rosacea often accompanied rosacea of the skin and it caused dry eyes. Treatment was noted as constant/near constant Tetracycline and constant/near constant Metronidazole. The examiner indicated that Tetracycline and Metronidazole were topical creams used to locally treat rosacea, not the entire body system and neither Tetracycline and Metronidazole were corticosteroids or immunosuppressive therapies. The examiner found that the Veteran’s skin disability did not cause scarring or disfiguring of the head, face, or neck and that it affected less than 5 percent of the total body area and less than 5 percent of the exposed body area. The VA and private medical treatment notes reflect that the Veteran reported ongoing treatment for rosacea. An October 2017 clinician diagnosed rosacea and treatment with oral Doxycycline twice daily for 3 months and then daily for another 3 months as well as hydrocortisone cream and Metrocream. May and August 2018 VA eye clinic notes indicated that he reported that his eyes teared and burned and that he was recently diagnosed with rosacea. The clinician diagnosed rosacea with associated dry eye syndrome in both eyes. Further, a December 2018 clinician diagnosed papulopustular rosacea previously treated with Doxycycline and Minocycline and currently treated with Tetracycline. Finally, an August 2019 treatment note reflected a history of rosacea with ocular component and an October 2019 dermatology note indicated papulopustular rosacea, well-controlled with Tetracycline along with Metrocream. Based on the above, a rating in excess of 10 percent is not warranted. A higher rating would require symptoms more nearly approximating 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. In this regard, the examinations revealed that the skin disability affected less than 20 percent of the exposed body area and less than 20 percent of the total body area. A higher rating could also be warranted for 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. As detailed above, the Veteran’s treatment for his skin disability is limited to the daily use of various topical therapies meant to treat only the affected areas as opposed to the body as a whole. Here, the evidence reflected on an October 2017 VA treatment record that he treated his skin condition with oral Doxycycline twice daily for 3 months and then daily for another 3 months and he was also noted to be using Minocycline for 6 weeks or more but not constant on the March 2018 DBQ. However, the July 2020 VA examination report noted treatment with medication for his skin condition in the past 12 months was constant/near constant Tetracycline and constant/near constant Metronidazole. Further, the examiner indicated that Tetracycline and Metronidazole were topical creams used to locally treat rosacea, not the entire body system. The examiner concluded that neither Tetracycline and Metronidazole were corticosteroids or immunosuppressive therapies. As such, a higher rating in not warranted pursuant to DC 7806. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, the Board finds these records to be more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hypertension As an initial matter, the Veteran has not asserted that hypertension is secondary to a service-connected disability; therefore, secondary service connection is not for application. However, hypertension is a chronic disease under 38 C.F.R. § 3.309; therefore, direct and presumptive service connection will be addressed. Turning first to direct service connection, the Veteran has been diagnosed with hypertension. The earliest mention of hypertension appeared in his treatment records in approximately 2010. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an inservice incurrence, the service treatment records (STRs) are negative for complaints of, treatment for, or a diagnosis of hypertension. The March 1984 induction blood pressure reading was 120/60. Additional in-service blood pressure readings were 118/86 in July 1982 and 124/90 in April 1987. Further, his May 1988 separation reading was 114/80. Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more, or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, DC 7101, Note (1). None of the in-service blood pressure readings meet these criteria. Therefore, the second element of direct service connection is not met. To the extent that the Veteran asserts that hypertension began in service, in a July 2020 VA examination, the examiner opined that hypertension was less likely than not incurred in service. The examiner reasoned that the STRs were absent of any complaints, diagnoses, or treatment related to hypertension. In an October 2020 VA addendum medical opinion, the examiner noted the STRs reflecting blood pressure readings 118/86 in July 1982 and 124/90 in April 1987 and the May 1988 Report of Medical History which was negative for hypertension. He explained that neither the July 1982 nor the April 1987 blood pressure readings were sufficient for a diagnosis of hypertension as the July 1982 blood pressure reading of 118/86 was a normal reading. Further, the examiner noted that although the April 1987 blood pressure reading of 124/90 showed a diastolic reading of 90, there were no additional blood pressure readings to support a diagnosis, as there would have needed to be 2 or more reading on 2 or more occasions that were abnormal. The examiner noted the medical article submitted by the Veteran that defined Stage 1 hypertension as a systolic pressure ranging from 130-139 mm Hg or a diastolic pressure ranging from 80 to89 mm Hg. The examiner further noted that the article submitted by the Veteran did not show a date of publish. As a result, the examiner referenced the current hypertension diagnostic criteria from the World Health Organization which diagnosed when the average systolic blood pressure was 140 mmHg or higher, or when the average diastolic blood pressure was 90 mmHg or higher, taken on two or more separate days. Systolic and diastolic blood pressure of less than 120 mmHg and 80 mmHg, respectively, was considered normal. The examiner also referenced the update from American College of Cardiology showing the following in regard to diagnosis of hypertension: It is critical that health care providers follow the standards for accurate BP measurement. BP should be categorized as normal, elevated, or stages 1 or 2 hypertension to prevent and treat high BP. Normal BP is defined as <120/<80 mm Hg; elevated BP 120-129/<80 mm Hg; hypertension stage 1 is 130-139 or 80-89 mmHg, and hypertension stage 2 is =140 or =90 mm Hg. Prior to labeling a person with hypertension, it is important to use an average based on =2 readings obtained on=2 occasions to estimate the individual’s level of BP. It is reasonable to conclude that the isolated blood pressure reading with a diastolic pressure of 90 mm Hg does not meet the definition of hypertension under any accepted medical standard, including under VA regulations. There is no contradictory opinion of record. Therefore, the medical evidence does not support the claim for direct service connection. Next, the medical evidence does not support presumptive service connected. To that end, as noted above, chronic hypertension was not shown in service. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, it is not clear when the Veteran was diagnosed with hypertension, but he reported the date of onset of hypertension as 2006 during his July 2020 VA examination. The first recorded hypertension symptomology was an August 2010 treatment record showing that he was a “new patient” and it was noted his past medical history included hypertension which appeared untreated. As he was discharged in 1988 and symptoms were not identified until 2006, over 18 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Similarly, this evidence does not support a finding that hypertension manifested to a degree of 10 percent or more within one year from the date of separation. The Veteran separated from service in 1988 but did not note symptoms until 2006 at the earliest. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection is not supported by the medical evidence. As such, the medical evidence does not support service connection on a “continuity of symptomatology” or on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. The Board has considered the Veteran’s lay statements that hypertension began in service. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeal is denied. Low Back Disorder The Veteran asserts that his back was injured in service during a 35-mile forced march. Additionally, he argued that he suffered in-service injuries that affected his back, namely a September 1986 fist fight during which he suffered trauma to his head, and a September 1987 accident in which he was run over by a motor vehicle. Turning to the evidence, the first element of service connection of a current disability is met. Specifically, the Veteran was diagnosed with DDD, spondylolisthesis with X-ray evidence of arthritis of the lumbar spine in a September 2012 VA examination. Additionally, he was diagnosed with DDD, spondylolisthesis and bilateral lower extremity radiculopathy in a November 2019 VA examination, and DDD, spondylolisthesis and right lower extremity radiculopathy in July 2020 VA examination. As to an in-service incurrence, the Veteran’s STRs dated September 1986 reflect that the Veteran’s nose, mouth, right elbow, right wrist, and right knee were injured during a fight, but there were no notations indicating injury to the back. Additionally, STRs dated September 1987 reflected that he was run over by a motor vehicle, with lacerations to his second, third, fourth and fifth toes of the right foot. X-rays showed minimal displacement fracture to the proximal head of the distal third phalanx. No injuries of the back were noted. The May 1988 Report of Medical Examination for separation reflected that clinical evaluation of the spine was normal. However, the May 1988 Report of Medical History for separation indicated that the Veteran endorsed “recurrent back pain.” As such, the second element of service connection is met. As to a medical nexus, no medical professional has established an etiological connection between service and the current low back disorder. On a September 2012 VA examination, the Veteran reported that throughout service, he experienced low back pain but that he did not receive any treatment at the time. The examiner diagnosed DDD and spondylolisthesis and noted X-rays showing arthritis of the lumbar spine. The examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by service. The examiner explained that the Veteran had no documented injury to the back and no episodes of treatment for low back pain documented in his service records. However, as the examiner did not acknowledge the Veteran’s complaints of recurrent back pain upon separation from service, the opinion is assigned less probative weight. Next, on a November 2019 VA examination, the Veteran reported that his back problems began when he was in the Marines around 1986 without direct trauma to the back. However, he stated that a military vehicle ran over his leg in 1986 causing him to fall to the ground which he also stated could have caused back problems. The examiner diagnosed lumbar spondylolisthesis with DDD and radiculopathy of the bilateral lower extremities. Upon examination, the examiner opined that the Veteran’s low back disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that “there is no record of a bar fight in September 1986 and motor vehicle injury in September 1987 as asserted.” However, as the STRs showed that the Veteran was treated for injuries sustained in a September 1986 bar fight and when a motor vehicle ran over his right foot in September 1987, there is record of these incidents in the Veteran’s claims file. Therefore, the examiner’s opinion is afforded less probative weight because it based on an inaccurate factual premise, specifically, that there was no evidence in the Veteran’s STRs for treatment for injuries sustained in a September 1986 bar fight and when a motor vehicle ran over his right foot in September 1987. In a July 2020 VA examination, the examiner diagnosed DDD and right lower extremity radiculopathy. Upon examination, the examiner opined that the low back disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that the STRs were silent for complaints, diagnoses or treatment of any back condition in service. Once again, as the examiner did not acknowledge the Veteran’s complaints of recurrent back pain upon separation from service, the opinion is assigned less probative weight. In an October 2020 VA addendum opinion, the examiner opined that the Veteran’s DDD was less likely than not due to service. The examiner explained that DDD was caused by the normal aging process. He further noted that although the Veteran was involved in an automobile accident in September 1987, there was no mention of the condition until 2016. Additionally, the examiner opined that the Veteran’s right lower extremity radiculopathy was less likely than not due to service as right lower extremity radiculopathy was a well-known complication of DDD. This evidence weighs against the claim. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30004 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In this case, the Board affords the October 2020 addendum opinion high probative weight as the examiner reviewed the claims file, to include STRs, and provided a detailed rationale for the opinion rendered. Further, there is no contradictory medical opinion of record. As to presumptive service connection, assuming that spondylolisthesis is a degenerative disorder, the Board will consider it a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. While degenerative changes of the lumbar spine have been shown, spondylolisthesis did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology has not been established. The available STRs do not show any complaints of or treatment for degenerative changes of the lumbar spine in service. The Veteran endorsed recurrent low back pain on his May 1988 Report of Medical History for separation, however, no further complaints were noted during service. Further, while he separated from service in 1988, spondylolisthesis was not shown by X-ray records until 2012. As such, a lumbar spine disorder did not manifest to a compensable degree in service or within the one-year presumptive period. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. The May 1988 separation examination reflected that clinical evaluation of his back was normal. While the May 1988 Report of Medical History indicated recurrent low back pain, there was no diagnosis of spondylolisthesis or other degenerative changes of the lumbar spine made. The record next indicates the Veteran sought treatment in 2011 for low back pain. The September 2012 VA examination documented X-rays showing spondylolisthesis of the lumbar spine. Thus, the first recorded reference to degenerative changes was noted in September 2012, approximately 23 years after discharge. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1988 but did not note symptoms until 2011 at the earliest. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. The Board has considered the lay statements that the Veteran’s claimed disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.