Citation Nr: 21004227 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-42 430 DATE: January 26, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened and, to that extent, the claim is granted. Entitlement to a disability rating in excess of 20 percent for herniated nucleus pulposus L4-L5 with degenerative joint disease (back disability) is denied. Entitlement to a compensable rating for pseudofolliculitis is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability, to include coronary artery disease, is remanded. Entitlement to service connection for residuals of a stroke, to include as secondary to a heart disability, is remanded. FINDINGS OF FACT 1. In a September 2004 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for hypertension; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the September 2004 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. The Veteran’s back disability is manifested by painful motion and forward flexion to more than 30 degrees with no evidence of ankylosis or incapacitating episodes. 4. The Veteran’s pseudofolliculitis is manifested by dermatitis affecting less than 5 percent of the total body area and exposed area; the Veteran uses non-systemic topical corticosteroids for more than 6 week per year, but not constantly. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for hypertension is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for a compensable disability rating for pseudofolliculitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to August 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 decision of a VA RO. These matters were remanded by the Board in March 2020. The Veteran testified before the undersigned Veterans Law Judge in November 2019. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for hypertension in a September 2004 rating decision, finding that there was no diagnosis of hypertension in service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2004). The evidence received since the September 2004 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran has provided new hearing testimony and medical records. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. 20 percent rating for back disability. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, there is no evidence of incapacitating episodes as defined by the regulation. During the appeal period the Veteran underwent VA examinations in May 2016 and January 2018. Range of motion testing was performed in May 2016 and showed, at worst, forward flexion to 60 degrees and a combined range of motion no less than 185 degrees. The January 2018 VA examiner was unable to complete range of motion testing because the Veteran was in a wheelchair and unable to stand during the examination. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the examinations he did report flare-ups but described the flare-ups as consisting of increased pain. Likewise, at his November 2019 hearing he stated that his back disability caused him a lot of pain and essentially rendered him homebound. However, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. While range of motion was not tested during the most recent examination, the evidence does not demonstrate that a higher disability rating is warranted. As the Veteran is able to sit comfortably, it is clear that his flexion is not limited to 30 degrees or less, nor is there any medical evidence of ankylosis. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating is not warranted based on limitation of motion. Relevant neurological findings, including bilateral sciatic nerve radiculopathy, benign prostatic hypertrophy, and erectile dysfunction, have already been service-connected and awarded appropriate ratings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. The Board does note the Veteran’s assertions during the November 2019 hearing that his back disability, in part, affects his ability to work and renders him essentially housebound. However, the record reflects that the Veteran is already in receipt of a total disability rating based upon individual unemployability due to service-connected disability, as well as special monthly compensation at the housebound rate, throughout the entire period on appeal. 2. Noncompensable rating for pseudofolliculitis. The Veteran’s pseudofolliculitis barbae is currently assigned a noncompensable disability rating and is rated by analogy under Diagnostic Code 7813-7806. Diagnostic Code 7813 applies to dermatophytosis, while Diagnostic Code 7806 applies to dermatitis or eczema. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 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. The Board notes that, prior to August 13, 2018, Diagnostic Code 7813 instructed to rate as disfigurement of the, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Here, the evidence of record demonstrates that the predominant disability due to pseudofolliculitis is dermatitis, as there is no evidence of scarring or disfigurement. As such, rating pursuant to Diagnostic Code 7806 is correct. 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 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. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under DC 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. See also Burton, 30 Vet. App. 286 (finding that the Federal Circuit in Johnson did not mean to limit the “factual circumstances” by which topical treatment may become a systemic therapy under DC 7806 to only situations involving large scale topical application). Effective August 13, 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: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent 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 less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 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, 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: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 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 Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s pseudofolliculitis does not affect at least 5 percent of the entire body or at least 5 percent of exposed areas and does not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. In that regard, when the Veteran underwent VA examination in May 2016 and January 2018, the examiners noted that dermatitis affected less than 5 percent of the total body area or exposed area. There were no indications of scarring or disfigurement, no systemic manifestations, and no debilitating or non-debilitating episodes. The Veteran used a topical corticosteroid on the area of the dermatitis for 6 weeks or more over the past 12 months, but not constantly. The Board also finds, for the reasons noted above, that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s pseudofolliculitis does not affect at least 5 percent of the entire body or at least 5 percent of exposed areas and does not require intermittent systemic therapy. As noted above, since this claim was filed prior to August 13, 2018, the Board must determine whether the Veteran’s topical corticosteroid affects the body as a whole in treating a veteran’s skin condition. Burton, 30 Vet. App. 286. Upon review, there is no indication in the record that this treatment was indeed systemic. In that regard, the corticosteroid was applied topically only to the areas where the dermatitis occurred, less than 5 percent of the Veteran’s total body area. The evidence does not demonstrate, nor does the Veteran suggest, that the effect of this topical medication, intended or otherwise, is systemic. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include his inability to shave, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. 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 for a compensable rating for pseudofolliculitis. 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. REASONS FOR REMAND 1. Service connection for hypertension. The Veteran asserts that his hypertension began in service. While the service treatment records do not reflect a diagnosis of hypertension, they do reflect complaints of chest tightness and shortness of breath, as well as frequent blood pressure checks. As no medical opinion has been obtained with respect to this issue, the Board finds remand is warranted so that a VA examination may be obtained. 2. Service connection for a heart disability. The Veteran asserts that he has a current heart disability related to his military service. As noted above, his service treatment records reflect in-service complaints of chest pain, palpitations, and shortness of breath. As no medical opinion has been obtained with respect to this issue, the Board finds remand is warranted so that a VA opinion may be obtained. 3. Service connection for residuals of a stroke. The matter of entitlement to service connection for residuals of a stroke is inextricably intertwined with the issue of entitlement to service connection for a heart disability; as such, it must also be remanded. Furthermore, the Board finds that a VA opinion should be obtained as to this matter as well. Updated VA treatment records, as well as any identified relevant private treatment records, should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his hypertension, heart disability, and stroke claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hypertension had onset during or within one year of separation from service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the Veteran’s lay statements regarding the onset of his hypertension. The examiner should also explicitly consider the in-service reports of chest tightness and shortness of breath. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current heart disability had onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the Veteran’s lay statements, as well as the in-service reports of heart palpitations, shortness of breath, and chest tightness. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s stroke and residuals is related to an in-service injury, event, or disease. The examiner should also address the Veteran’s stroke and residuals is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) a heart disability, to include by the implantation of a pacemaker. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.