Citation Nr: 21062116 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-53 506 DATE: October 6, 2021 ORDER Entitlement to an initial compensable rating of 10 percent, but no higher, for lipomas from June 20, 2012 is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety is granted. FINDINGS OF FACT 1. During the entire appellate time frame, the Veteran's skin condition was characterized as affecting between 5 and less than 20 percent of total body area; at no time during the pendency of the appeal did the Veteran's skin condition affect over 20 percent of the entire body or require systemic therapy or other treatments for his condition. 2. Resolving reasonable doubt in the Veteran's favor, his PTSD was caused by fear of hostile military activity experienced during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating of 10 percent, but no higher, for lipomas, from June 20, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7822. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety have been met. 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 June 1972 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a VA Regional Office (RO). By way of background, the RO denied the Veterans claims seeking an increased rating for his lipoma skin condition and service connection for bilateral hearing loss, tinnitus, and PTSD in the June 2015 rating decision from which the Veteran timely appealed requesting a hearing. The hearing occurred in December 2020 before the undersigned and a transcript has been associated with the claims file and reviewed. The Board, in an April 2021 decision, recharacterized the Veteran's claim for service connection for PTSD to any acquired psychiatric disorder, to include PTSD, depression, and anxiety in compliance with Clemons and then remanded all claims for further development, to include affording him new VA examinations. Clemons v. Shinseki, 23Vet. App.1, 4-5 (2009). A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board's remand and requested development, the RO granted service connection for bilateral hearing loss and tinnitus in a July 2021 rating decision. This being a complete grant of the benefits sought, these claims are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The July 2021 rating decision also granted an increased rating for his lipomas to 10 percent, effective May 20, 2021. This increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issues remain on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Generally, disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. The Board notes that 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. 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 Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied." 83 Fed. Reg. at 32593; see generally VAOPGCPREC 3-2000, 7-2003. As the claim for consideration was filed prior to August 13, 2018, it must be considered under the rating criteria in effect both before and after August 13, 2018. In this case, the Veteran is seeking an increased rating for his service-connected lipoma skin condition which is rated under Diagnostic Code (DC) 7822. Under the criteria in effect prior to August 13, 2018, DC 7822 provides for a 10 percent evaluation 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, and constant or near-constant systemic medications or therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, DC 7822. For claims filed prior to August 13, 2018, the Court held that a systemic 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. 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, 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 under the August 13, 2018 revisions when there is 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 under the August 13, 2018, revisions 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, psoralen with long-wave PUVA or other immunosuppressive drugs required over the past 12-month period. Effective August 13, 2018, systemic therapy is defined as treatment that is administered through any route other than the skin, and topical therapy as treatment that is administered through the skin. 38 C.F.R. § 4.118(a). 1. Entitlement to an initial compensable rating of 10 percent, but no higher, for lipomas from June 20, 2012 is granted. The Veteran filed his lipomas claim on June 20, 2012, and the RO awarded an initial 0 percent (non-compensable rating), effective June 20, 2012, to May 19, 2021, and a 10 percent rating, effective May 20, 2021. As will be outlined below, the Board finds the evidence of record indicates that the 10 percent disability rating, but no higher, is warranted for the entirety of the period on appeal (effective June 20, 2012) and, therefore, to that extent the appeal is granted. The Veteran was initially afforded a VA examination in August 2013 wherein, the Veteran reported that he had "lumps" on his arms, legs, back and abdomen. The Veteran further reported that some lumps are tender, and others are not. He did not report any other signs or symptoms. The examiner noted that over the past year, the Veteran had not treated his lipomas with any medications, including oral and topical, and had received no other form of treatment. The examiner also noted that "the Veteran does not have any...visible skin condition" and therefore did not provide any measurements for any affected areas. In June 2017, the Veteran was afforded another VA skin examination. At which time, the Veteran's diagnosis of lipomas was confirmed. The Veteran reported that he had no new lipomas since the 2013 VA examination. Once more the Veteran reported some lipomas are tender upon palpation. The examiner noted that the Veteran had not been treated for his lipomas within the past twelve months nor has he used any oral or topical medications. Observationally, the examiner noted the presence of fifteen lipomas on the Veteran located "over the trunk and extremities" with the largest on his right chest wall measuring 8 by 6 centimeters. The examiner noted that the Veteran's lipomas covered a total body area of over 5 percent but only over 2 percent of his exposed area. Lastly, the examiner noted that there was no functional impact due to his lipoma condition. During the December 2020 Board hearing, the Veteran testified to his lipoma condition worsening. Specifically, he testified to having several lipomas removed because they were painful and that he currently had lipomas all over his body including "30 on my right arm...my stomach is covered". See December 2020 Board Hearing P. 5. The Veteran further reported that he currently was not seeking treatment for his skin condition due to past experiences with VA and the out-of-pocket expenses associated with seeking private treatment. He also testified to not using any medications, topical or otherwise, to treat his lipomas simply stating "No...I live with it". See December 2020 Board Hearing P. 8. A final VA skin examination was conducted in May 2021. Again, the examiner found that no medications or other forms of treatment had been used over the past twelve months. Upon physical examination, the Veteran's lipomas were determined to cover a total body area of greater than 5 percent but less than 20 percent with the same noted for his exposed area. The examiner noted that the Veteran had 15 lipomas located over his trunk and extremities with the largest being on his right lateral chest wall measuring 5 by 6 centimeters. No functional impact was noted however, the examiner did remark that the Veteran had multiple scars from prior excision of some of his lipomas on the right trunk, left arm and left anterolateral chest. The Board notes, that in a separately filed claim for benefits in May 2021, the Veteran sought service connection for these reported scars. Subsequently, the RO granted service connection for these scars in a separate July 2021 rating decision and no appeal has been filed. As such, these claims are not now before the Board. Based on the evidence of record, an initial compensable rating for the Veteran's skin condition of 10 percent, but no higher, is warranted for the entire period on appeal. While the August 2013 VA examiner did not report any measurements, the medical evidence of record consistently reflects lipomas on multiple extremities in this examination and subsequent examinations thereafter. During the June 2017 VA examination, the Veteran reported no new lipomas since his last VA examination in 2013. The June 2017 examiner went on to state that the Veteran had 15 lipomas on his body affecting a total are over 5 percent. The rating criteria for skin conditions both before and after the August 2018 amendments provide for a 10 percent rating when a skin condition affects a total body area of "at least 5 percent". As such, the medical evidence of record indicates that the Veteran's lipoma condition affected at least 5 percent of his total body area and that his condition stayed relatively stable from the time he filed his initial claim in June 2012 up to the present as confirmed by the May 2021 VA examination. Therefore, the Board finds that an initial rating of 10 percent for lipomas effective June 20, 2012, is warranted. A rating in excess of 10 percent, however, is not warranted at any time on appeal as the Veteran's skin condition does not affect between 20 and 40 percent of either his total body area or the exposed area nor has there been any use of medications to treat his condition. That is, while the Veteran reported a worsening of his condition with removals of some painful lipomas, none of the medical evidence indicates the condition worsened to the extent that the lipomas affect 20 percent or more of his total body area. Further, the medical evidence consistently shows the Veteran does not use any medications to treat his condition and, indeed, he testified to the same. Accordingly, while the Board finds that a compensable rating for the Veteran's skin condition is warranted since the filing of his claim on June 20, 2012, a higher rating is not. The Board acknowledges the Veteran's assertions and belief that his skin condition is worse than currently rated. However, the reports and testimony by the Veteran of the severity of his condition appear to be inconsistent with the record. Specifically, the Veteran has reported having "over 60 lipomas" on his body and also testifying having "probably 30 lipomas" on just one arm. See July 2015 Notice of Disagreement, see also December 2020 Board Hearing P. 5. In contrast, the VA examiners have consistently reported the Veteran having 15 lipomas with the most recent examiner in May 2021 reporting the removal of three other lipomas for a maximum total of 18. Therefore, the Board finds that while the Veteran is competent to report the observable physical symptoms of this disorder, such as pain, and bumps, his inconsistent reporting of the severity of his condition renders his lay reports of lesser probative weight. See Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (affirming rejection of lay evidence based, in part, on fact that it was inconsistent with the record). In addition, while he is competent to report observable physical symptoms, he is not competent to determine that his condition has progressed. This issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body as well as the ability to interpret complicated diagnostic medical testing. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes consideration of the Veteran's disability picture and the tools available under the VASRD and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that is not contemplated by the available schedular tools used to rate his disability. Accordingly, while the Board determines that the Veteran's skin condition should receive an initial compensable rating of 10 percent, effective June 20, 2012, the Board finds no basis to award any further higher rating. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is granted. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran 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 "the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, 38 C.F.R. §3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. §3.304(f)(3). The amendment provides that if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. Id. "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. Here, the Veteran contends that his PTSD is due to fear of hostile military activity. Specifically, the Veteran has reported and testified to hearing rockets and small arms fire with alarms going off constantly while briefly stationed at Da Nang Air Base in the Republic of Vietnam. At the outset, the Board notes that the Veteran is currently diagnosed with PTSD under the DSM-V criteria. See May 2021 VA Examination. In addition, the May 2021 VA examiner confirmed that the claimed stressor is related to a fear of hostile military activity and is adequate to support a diagnosis of PTSD. Also, there are no probative opinions of record that contradict the medical opinions of record that the Veteran's PTSD is due to stressors in service. Thus, the sole remaining question before the Board is whether the Veteran's claimed stressor is consistent with the places, types, and circumstances of his service with no clear and convincing evidence to the contrary. After review of the evidence of the record, the Board finds that the evidence is in equipoise as to whether the claimed stressor is consistent with his service. Service treatment records are silent for diagnosis or treatment of PTSD or any psychiatric disorder. His separation examination is similarly negative for any report of PTSD symptoms. A review of the Veteran's military personnel records indicates the Veteran served in the U.S. Navy aboard the USS Manatee beginning around December 1972 to May 1973. His military occupational specialty (MOS) was as a fireman and his last station was aboard the USS Camden in January 1976. The Veteran's claimed stressor event occurred on or around November 15, 1972, when he claims he was to be transferred from the USS Okinawa to the USS Manatee. The Veteran contends that at the time of transfer by helicopter, the USS Manatee was not available, so he was redirected to Da Nang Air Base in Vietnam. After waiting at this base, the Veteran reported to being transferred to the USS Manatee around December 8, 1972. It was during his approximate 3-days stationed at Da Nang Air Base that the Veteran reported to hearing rockets and small arms fire with accompanying base alarms going off constantly causing him to fear for his life. See July 2015 Statement in Support of Claim, See also December 2020 Board Hearing P.19. Extensive efforts were made to confirm the Veteran's presence at Da Nang Air Base in Vietnam to no avail. The RO requested research and information from the Defense Personnel Records Information Retrieval System (DPRIS). In August 2017, DPRIS research into the command history and the October 1972 to December 15, 1972 deck logs submitted by the USS Okinawa. This research indicated that although the ship did operate in the Gulf of Tonkin during October and November 1972, the command history and deck logs did not record a diverted helicopter flight to Da Nang in the Republic of Vietnam. To assist in verification of his stressor, the Veteran submitted several photographs reported to be of the Veteran himself at Da Nang Air Base. The photograph, however, has no signage or any other indicators showing where the picture was taken or on what date. One photograph reportedly shows the Veteran along with a fellow servicemember, Phil Lowe, at the base in 1972, but again the picture itself does not contain any indicators of where the men in the picture are located. Other photographs submitted attempt to show the similarities of the base in the Veteran's photograph with other online Google-photos reportedly of Da Nang air base from the 1970s. In May 2017, the Veteran was afforded a VA examination for his claimed psychiatric condition. The examiner confirmed his diagnosis of PTDS under the DSM-V criteria and noted that the Veteran did not have any other diagnosed mental disorders. During examination, noted symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, suicidal ideation. The examiner considered the Veteran's reported military stressors of hearing rockets and small arms fire while stationed at Da Nang air base. Ultimately, it was opined that this stressor was related to a fear of hostile military or terrorist activity and was adequate to support his PTSD diagnosis. The examiner further opined that "it is at least as likely as not that the Veteran has PTSD incurred from events listed above that reportedly occurred while in active duty". It was explained that although the Veteran's STRs were silent for any diagnosis or treatment for PTSD, the Veteran's current symptoms meet DSM-V criteria for PTSD, and they have a definable impact on his occupational and social functioning. Lastly, it was noted that even though his stressor had not been verified, the examiner found the Veteran's reports of stressors to be consistent and credible. The Veteran similarly testified as to these events before the Board in a hearing with the undersigned in January 2021 and the Board has no reason to doubt the Veteran's credibility insofar as describing that he was stationed briefly in a barracks where he feared for his life due to hearing rocket and small arms fire. Whether or not the Veteran was briefly stationed in Vietnam specifically is irrelevant for purposes of this inquiry. The Board finds, resolving all reasonably doubt, that the Veteran's general report that he was transported by helicopter and stayed somewhere temporarily for 3-days where he feared for his life due to hearing rocket and small arms fire nearby is generally consistent with the circumstances of his service. Stated another way, while his presence in Vietnam specifically cannot be confirmed, the Board finds specific Vietnam-presence verification is unnecessary to concede that the Veteran was likely in a position during his military service where he feared imminent harm from hostile attack. Thus, resolving all reasonable doubt, the Board finds the Veteran's reported stressors to be consistent with the places, types, and circumstances of his service with no clear and convincing evidence to the contrary. The Veteran is found competent to report that he was briefly stationed in a barracks where he feared for his life due to hearing rocket and small arms fire. His reports of fearing for his life as due to the claimed stressor event is also found to be credible. The Veteran served during the Vietnam era, his reports have been consistent throughout the appeal and included specific dates and details. In addition, the May 2021 VA examiner remarked that the reports of symptoms and stressors to be consistent and credible. Therefore, as there is no clear and convincing evidence to the contrary, the Board finds the reported in-service stressor of rocket attacks and small arms fire to be conceded. It is worth emphasizing that the Board is not at this time conceding any exact location in which the Veteran may have been stationed during his brief 3-day transport. As noted above, the Veteran's presence in Vietnam has not been confirmed, but for purposes of this appeal, his presence in Vietnam is not what is of consequence. (Continued on the next page) In conclusion, the Board resolves all reasonable doubt in favor of the Veteran and finds that a current PTSD diagnosis due to fear of hostile military activity has been shown. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim of service connection for PTSD is granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.