Citation Nr: 21003516 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-07 039 DATE: January 21, 2021 ORDER An initial compensable rating for asthma prior to February 22, 2011, and in excess of 30 percent thereafter, is denied. REMANDED Entitlement to service connection for basal cell carcinoma (BCC), to include as secondary to service-connected dermatitis/eczema, is remanded. Entitlement to an initial compensable rating for dermatitis/eczema is remanded. FINDINGS OF FACT 1. Prior to February 22, 2011, the Veteran’s asthma was not manifested by an FEV-1 (Forced Expiratory Volume in one second) of 71-80 percent of the predicted value, an FEV-1/FVC (FEV-1/Forced Vital Capacity) of 71-80 percent of the predicted value; or intermittent inhalational or oral bronchodilator therapy. 2. Since February 22, 2011, the Veteran’s asthma has been manifested by the use of daily inhalational or bronchodilator therapy; it has not been manifested by an FEV-1 of 40- to 55-percent predicted or less; FEV-1/FVC of 40 to 55 percent or less; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW The criteria for an initial compensable rating for asthma prior to February 22, 2011, and in excess of 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.97. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1990 to July 1991, to include service in Southwest Asia. She also had service in the U.S. Army Reserve, to include a period of active duty for training from November 1987 to April 1988. Her decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2010 and December 2016 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs). In the February 2010 rating decision, the RO, in pertinent part, denied service connection for a skin disorder. In the December 2016 rating decision, the RO granted service connection for asthma and assigned a 0 (zero) percent (noncompensable) rating prior to February 22, 2011, and a rating of 30 percent thereafter; it also granted service connection and a noncompensable rating for dermatitis/eczema. Regarding the Veteran’s claim of entitlement to service connection for BCC, the Veteran testified at a Board video-conference hearing before a now-retired Veterans Law Judge in September 2015. A transcript of that hearing has been associated with the record. In May 2017, the Veteran was offered the opportunity to appear at another hearing. She was notified that if she did not respond within 30 days, it would be assumed that she did not want another hearing. To date, the Veteran has not requested another hearing. The Veteran’s claim for service connection for BCC was previously before the Board in January 2016, July 2017, and July 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. Because the development sought was not fully completed, a further remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s rating claims were also previously before the Board in July 2019. In its July 2019 remand, the Board directed the AOJ to obtain updated VA treatment records and to readjudicate the issues on appeal in light of all of the evidence that had been added to the record since the issuance of an April 2018 supplemental statement of the case (SSOC). The AOJ obtained updated treatment records in July 2020. It then readjudicated the issues on appeal and issued a new SSOC later that same month. The Board finds that, with regard to the Veteran’s rating claims, the AOJ has substantially complied with the remand directives. See Stegall, supra. An initial compensable rating for asthma prior to February 22, 2011, and in excess of 30 percent thereafter The Veteran contends that her service-connected asthma warrants an initial compensable rating prior to February 22, 2011, and in excess of 30 percent thereafter. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s asthma is rated under Diagnostic Code (DC) 6602. 38 C.F.R. § 4.97, DC 6602. Under DC 6602, a 10 percent rating is warranted for bronchial asthma when FEV-1 is 71-80 percent of the predicted value, or; FEV-1/FVC is 71-80 percent of the predicted value, or; intermittent inhalational or oral bronchodilator therapy is used. A 30 percent rating is warranted when FEV-1 is 56-70 percent of predicted, or; FEV-1/FVC is 56-70 percent of predicted, or; daily inhalational or oral bronchodilator therapy is used, or; inhalational anti-inflammatory medication is used. A 60 percent rating is warranted when FEV-1 is 40-55 percent of predicted, or; FEV-1/FVC is 40-55 percent of predicted, or; at least monthly visits to a physician are required for care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required. A 100 percent rating is warranted when FEV-1 is less than 40 percent of predicted, or; FEV-1/FVC is less than 40 percent of predicted or; there is more than one attack per week with episodes of respiratory failure, or; daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. Id. For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. 61 Fed. Reg. 46,723 (1996) (VA assesses pulmonary function after bronchodilation). Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96(d)(4), (5). In addition, “[w]hen there is a disparity between the results of different PFTs (pulmonary function tests) so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability.” 38 C.F.R. § 4.96(d)(6). When the requirements for a compensable rating of a diagnostic code are not shown, a noncompensable (0 percent) rating is assigned. 38 C.F.R. § 4.31. After a thorough review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for asthma prior to February 22, 2011, and in excess of 30 percent thereafter. The Board notes that during the period on appeal, the first reference to any breathing problems was in July 2010, when the Veteran reported trouble breathing. While a PFT was apparently performed with abnormal results, the results were not recorded, and no diagnosis was given. Instead, the provider stated that he would request a new PFT. The Veteran was treated for episodic exertional dyspnea on February 22, 2011. While the Veteran was not diagnosed with asthma at that time, she was first prescribed an albuterol inhaler on that date. The prescription instructed the Veteran to take two puffs by mouth inhalation, two times per day, as needed for shortness of breath. The Veteran was diagnosed with “probable asthma” in April 2011, when it was also noted that her symptoms were well controlled with albuterol as needed. An April 2012 VA treatment record also indicates that the Veteran’s asthma symptoms were well controlled at that time with infrequent, as needed, albuterol. The Veteran was afforded a VA examination to determine the nature and etiology of her asthma in October 2012. The examiner found that the Veteran had asthma, identifying the date of diagnosis as 2011. The examiner indicated that the condition did not require the use of oral or parenteral corticosteroid medications but did require the use of daily inhalational bronchodilator therapy. She also indicated that the condition did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. She further indicated that the Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months, and that she had not had any physician visits for required care of exacerbations. A chest x-ray revealed no acute cardiopulmonary processes, and PFT findings post-bronchodilator revealed that the Veteran’s FEV-1 was 100 percent of predicted, while her FEV-1/FVC was 81 percent of predicted. The examiner indicated that the FEV-1/FVC was the test result that most accurately reflected the Veteran’s level of disability and opined that the condition did not impact the Veteran’s ability to work. The Veteran underwent an additional PFT administered by a private provider in August 2013. Post-bronchodilator testing revealed that her FEV-1 was 92 percent of predicted and that her FEV-1/FVC was 103 percent of predicted. She was prescribed two daily inhalational medications to take by mouth and two daily inhalational medications to take nasally. The Veteran was afforded a second VA examination in July 2016. The examiner indicated that the Veteran required a chronic low dose (maintenance) of corticosteroids and daily inhalational bronchodilator therapy. She indicated that the Veteran did not require oral bronchodilators, antibiotics, or outpatient oxygen therapy, that she had had no asthma attacks with episodes of respiratory failure in the past 12 months, and that she had had no physician visits for required care of exacerbations. A PFT was not performed, the examiner indicated that there were no other pertinent physical findings, and the examiner opined that the condition impacted the Veteran’s ability to work inasmuch as she had asthma attacks nearly every morning that were relieved by an albuterol inhaler. She continued that it interfered with the Veteran’s ability to work due to having to stop whatever it was she was doing to make time to treat the asthma attack. In December 2016, the July 2016 examiner clarified that her previous indication that the Veteran required a chronic low dose of corticosteroids was made in error. The Board finds that that clarification is consistent with the record, as there is no evidence that the Veteran has ever required corticosteroids to treat her asthma. VA treatment records in June 2017, July 2018, and January 2019 all indicate that the Veteran continued to use inhalers to treat her asthma, and that the inhalers resulted in good clinical control. In light of the above, the Board finds that an initial compensable rating for asthma prior to February 22, 2011, and in excess of 30 percent thereafter, is not warranted. The claims file clearly demonstrates that the Veteran was first prescribed inhalational bronchodilator therapy on February 22, 2011 on a daily, as needed basis, which is consistent with a 30 percent rating as of that date. She was not prescribed any medications for asthma prior to that date, which is consistent with a noncompensable rating. PFT results from October 2012 and August 2013 do not warrant higher ratings. There is also no evidence of record that indicates that the Veteran has ever required any physician visits for required care of exacerbations, the use of systemic corticosteroids, or that her asthma has caused attacks with episodes of respiratory failure. The Board notes that the Veteran was prescribed an anti-inflammatory nasal inhalational medication in April 2010. Review of the treatment records surrounding that visit, however, demonstrate that she was being treated for possible laryngitis and symptoms of nasal congestion, and that she was diagnosed at that time with allergic rhinitis. The Board notes that the Veteran is not service-connected for allergic rhinitis and emphasizes that the record demonstrates that the first time the Veteran used inhalational (or any other) medication to treat her asthma was on February 22, 2011. The Board has considered the doctrine of reasonable doubt. However, as stated above, the preponderance of the evidence is against the claim. Accordingly, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal of this issue must be denied. REASONS FOR REMAND 1. Entitlement to service connection for BCC, to include as secondary to service-connected dermatitis/eczema, is remanded. The Veteran contends that her BCC was incurred in or caused by service. The record has also reasonably raised the theory that it may be a manifestation of an undiagnosed illness or a manifestation of a medically unexplained chronic multisymptom illness as a result of her service in Southwest Asia. It has also raised the theory that her BCC may be secondary to her service-connected dermatitis/eczema. The Veteran was afforded a VA examination in connection with her claim in June 2018. The examiner found that the Veteran had diagnoses of nodular BCC, dermatitis or eczema, bullous disorder, and lichen simplex. He noted that the Veteran was diagnosed with nodular BCC in May 2009, and that she denied any other diagnosis of or treatment for skin cancer following the 2009 diagnosis. The examiner offered a negative nexus as to direct service connection, reasoning that there was no objective evidence of BCC prior to the May 2009 evaluation, that BCC was a common skin cancer in the general population, and that while both environmental and genetic factors contributed to the development of BCC, long-term sun exposure was the most important factor. He opined that it was at least as likely as not that the Veteran’s BCC was related to long-term sun exposure over her lifetime and cited to medical literature to support his opinion. The examiner also stated that BCC was a diagnosable chronic multisymptom illness with a partially explained etiology, and opined that there was no objective medical or scientific evidence that BCC was epidemiologically caused by and/or aggravated by dermatitis, bullous disorder, lichen simplex, or a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner also gave a conflicting opinion on direct service connection elsewhere in the examination report, stating that it was at least as likely as not that the Veteran’s BCC was incurred in or caused by active duty or service in Southwest Asia. In its July 2019 remand, the Board found that the June 2018 examiner’s nexus opinions were ambiguous. It remanded the claim for addendum opinions on direct service connection and as to whether the Veteran’s BCC was a manifestation of an undiagnosed illness or a manifestation of a medically unexplained chronic multisymptom illness. The RO obtained an addendum opinion in November 2019. The examiner noted that the Veteran was diagnosed with nodular BCC on the right side of her neck in 2009 and underwent an excision. The examiner offered a negative nexus opinion, supporting it by the same reasoning offered by the June 2018 examiner. She also opined that it was likely that the Veteran’s BCC was related to long-term sun exposure over her lifetime. The examiner further offered a negative opinion as to whether the Veteran’s BCC was a manifestation of a medically unexplained chronic multisymptom illness, stating, as the June 2018 examiner did, that BCC was a diagnosable chronic multisymptom illness with a partially explained etiology. The Board finds that the June 2018 and November 2019 VA opinions do not substantially comply with the Board’s July 2017 and July 2019 remand directives. While they offer reasoned opinions as to direct service connection and whether the Veteran’s BCC is a manifestation of a medically unexplained chronic multisymptom illness, neither examiner offered an explicit opinion as to whether the Veteran’s BCC was a manifestation of an undiagnosed illness due to her service in Southwest Asia. The June 2018 examiner’s opinion on secondary service is not supported by any rationale, and the November 2019 examiner did not provide an opinion on secondary service connection. Under the circumstances, a further addendum opinion is warranted. See Stegall, supra; Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 2. Entitlement to an initial compensable rating for dermatitis/eczema is remanded. The Veteran was afforded VA examinations in connection with her claim in October 2012, July 2016, June 2018, and November 2019. The July 2016 examiner indicated that the Veteran had treated her dermatitis/eczema with the topical corticosteroids hydrocortisone cream and tenovate cream for less than 6 weeks in the past 12 months, and that she had also treated it with a topical antibiotic cream for less than 6 weeks in the past 12 months. The October 2012, June 2018, and November 2019 examiners all indicated that the Veteran had not used oral or topical medications or undergone any other kinds of treatments for her dermatitis/eczema in the 12 months prior to each of the examinations. The Board finds that the July 2016 examination does not comply with the requirements of Burton v. Wilkie, 30 Vet. App. 286 (2018), which addresses considerations pertaining to the assignment of disability ratings for skin disabilities under the version of Diagnostic Code 7806 in effect for claims pending prior to August 13, 2018. See also Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Warren v. McDonald, 28 Vet. App. 194 (2016). Specifically, the July 2016 examiner did not offer a clear opinion as to whether any topical medication the Veteran used during the pendency of her claim operated by affecting the body as a whole such that it can properly be considered systemic therapy. Consequently, an addendum opinion is warranted. See Barr, supra. These matters are REMANDED for the following action: 1. Arrange to provide the claims file to the examiner who offered an opinion with respect to the etiology of the Veteran’s BCC in November 2019. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s BCC is a manifestation of an undiagnosed illness due to her service in Southwest Asia. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran’s BCC was (a) caused or (b) aggravated (i.e. worsened beyond natural progression) by her service-connected dermatitis/eczema. If the November 2019 examiner is no longer employed by VA or is otherwise unable to offer the requested opinion(s), arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic interview of the Veteran is left to the discretion of the examiner selected to provide the requested opinion. A complete medical rationale for all opinions expressed must be provided. 2. Also arrange to provide the record on appeal to a VA clinician with appropriate experience to assess the nature of the Veteran’s treatment for her service-connected dermatitis/eczema. The examiner should state whether the Veteran’s treatment for eczema, including any topical medication she uses or has used since April 2009 (when she filed her claim for benefits), operates by affecting the body as a whole such that it can properly be considered systemic therapy. In so doing, the examiner should specifically consider the medication(s) used by the Veteran as noted in the reports of her July 2016 VA examination. The need for another examination and/or telephonic interview of the Veteran is left to the discretion of the examiner selected to provide the requested opinion. A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.