Citation Nr: 21065503
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-32 398
DATE: October 26, 2021

ORDER

As new and material evidence has been received, the appellant's claim to entitlement to service connection for erectile dysfunction (ED) to include as due to service-connected disabilities is reopened.

Entitlement to an earlier effective date than June 12, 2018, for an increased evaluation for 20 percent for a right shoulder disability is denied.

Entitlement to an earlier effective date than June 12, 2018, for the grant of service connection for lichen planus chronicus is denied.

Entitlement to an increased evaluation in excess of 20 percent for a right shoulder disability is denied.

Entitlement to a compensable evaluation for lichen planus chronicus is denied.

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to major depressive disorder is remanded.

Entitlement to service connection for erectile dysfunction (ED) to include as due to service-connected disabilities is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. A December 2012 rating decision denied service connection for the Veteran's claimed erectile dysfunction. The Veteran was notified of this decision but did not initiate an appeal, therefore the decision became final.

2. The evidence received since that decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for erectile dysfunction.

3. In the July 2018 rating decision on appeal, the Regional Office (RO) granted an increase in rating for a right shoulder disability to 20 percent and granted service connection for lichen planus chronicus effective June 12, 2018.

4. There is no evidence indicating a formal or informal claim for increased rating for a right shoulder disability, or for service connection for lichen planus chronicus, prior to June 12, 2018.

5. There is no evidence to show an increase in the severity of the Veteran's right shoulder disability within the year preceding the June 12, 2018 claim.

6. The Veteran's right shoulder disability is most consistent with limitation of motion at the shoulder level. There was no ankylosis or impairment of the humerus

7. The preponderance of the evidence is against a finding that the Veteran's lichen planus chronicus affected at least five percent of his entire body or exposed areas affected, or that the Veteran's required treatment for lichen planus included systemic therapy.

CONCLUSIONS OF LAW

1. The December 2012 rating decision, which denied the Veteran's claim of entitlement to service connection for erectile dysfunction, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103.

2. Evidence received since the December 2012 rating decision in relation to the Veteran's claim for entitlement to service connection for erectile dysfunction is new and material; therefore, the claims are reopened. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156.

3. The criteria for an effective date earlier than June 12, 2018, for the increase in rating to 20 percent for right shoulder disability, have not been met. 38 U.S.C. §§ 1155, 5110, 38 C.F.R. §§ 3.400, 4.71a.

4. The criteria for an effective date earlier than June 12, 2018, for the grant for service connection for lichen planus chronicus, have not been met. 38 U.S.C. §§ 1155, 5110, 38 C.F.R. §§ 3.400, 4.71a.

5. The criteria for entitlement to an evaluation in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 

6. The criteria for an initial compensable disability rating for lichen planus chronicus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7822.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active-duty service with the Air Force from October 1977 to April 1978, from April 1983 to June 1992, and from May 2009 to October 2010.

This matter is on appeal from a February 2018 and July 2018 rating decision.

In an October 2019 Board decision, the Board denied entitlement to service connection for obstructive sleep apnea as secondary to service-connected major depressive disorder. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in January 2021, issued a decision to vacate and remand the issue back to the Board for re-adjudication.

The Board notes that where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran's representative has raised and maintained an issue of entitlement to TDIU throughout the appeal period. 

Accordingly, the Board finds that the record reasonably raises a claim that the Veteran's service-connected disabilities prevents him from working or maintaining employment. The Board has therefore characterized the issues on appeal to include a claim for a TDIU.

New and Material Evidence

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (a). 

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § § 3.156 (a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).

A December 2012 rating decision denied entitlement to service connection for erectile dysfunction. Evidence available at the time of this decision included the Veteran's service treatment records (STRs), medical treatment records, and the Veteran's statements. The rating decision found no record in the STRs of complaints, treatments or diagnoses for erectile dysfunction and no nexus.

The Veteran was notified of the decision but did not perfect the appeal of the rating decision; therefore, the December 2012 rating decision became final.

New evidence since that decision includes VA medical treatment records, submitted lay statements, VA examination, and the Veteran's substantive appeal. 

The Veteran has stated that he experienced symptoms or issues relating to erectile dysfunction from 2007 and also asserted that it was due to his service-connected disabilities.

The evidence and statements, if presumed credible, raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for entitlement to service connection for erectile dysfunction, is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

Effective Date

The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. 

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues).

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.

Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 3.400 (b)(2)(i). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Right shoulder disability 

The Veteran seeks an earlier effective date for the grant of an increased rating for his right shoulder disability and the grant of service connection for lichen planus chronicus effective June 12, 2018, the date the Veteran submitted his claim.

The Board notes that a December 2012 rating decision granted service connection for a right shoulder disability. Review of the Veteran's claims folder does not show the Veteran filed an appeal or submitted new evidence relating to his right shoulder disability within the one-year appeal period of the decision; therefore, the December 2012 rating decision became final. See 38 U.S.C. § 7105 ; 38 C.F.R. § 20.302. Thus, the June 12, 2018 claim for increased rating, being later than the date any entitlement arose, is the "later" date, and therefore the correct assigned effective date. Moreover, the exception to this rule under 38 C.F.R. § 3.400 (o)(2) does not apply because there is no medical evidence of record indicating an increase in disability in the year prior to June 12, 2018. In fact, the record contains no medical evidence dated during this one-year period to show complaints or indications of an increased severity of the Veteran's right shoulder disability.

The effective date for an increased rating in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

Neither the Veteran nor his experienced counsel has offered any statement that the Board can liberally construe or read sympathetically to determine why he believes an earlier effective is warranted. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Mansfield, 21 Vet. App. 545, 555 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran nor representative have provided specific arguments or what specific effective date should be granted.

As such, the July 12, 2018 claim constituted the earliest informal claim for an increased disability rating for the service-connected right shoulder disability.

As explained above, in order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim.

Review of the Veteran's medical treatment records during the one-year period prior to July 12, 2018, do not show any complaint or increased severity of the right shoulder disability. The evidence does not show the Veteran submitted a formal or informal claim for an increased rating for his service-connected right shoulder disability prior to July 12, 2018.

As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Lichen planus chronicus

The Veteran also seeks an earlier effective date for the grant of service connection for lichen planus chronicus prior to June 12, 2018.

After review of the evidence of record, the Board finds an earlier effective date is not warranted for the grant of service connection for the Veteran's lichen planus chronicus. The Veteran applied for service connection for his heart condition on June 12, 2018. The Board granted service connection with a noncompensable evaluation effective June 12, 2018, the date the Veteran filed his claim.

A review of the Veteran's claims file finds no evidence indicating a formal or informal claim for lichen planus chronicus prior to June 12, 2018. The Veteran did not assert a claim seeking benefits for symptoms of his lichen planus chronicus, nor did he make a general statement of an intent to seek service connection for disabilities occurring during active-duty service that were reasonably identifiable in his service treatment records. See Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (Vet. App. Aug. 23, 2018) (holding that an informal claim for benefits may be raised where a claimant makes a general statement of intent to seek benefits for unspecified disabilities and there is evidence of reasonably identifiable in-service diagnoses in service treatment records in the possession of the RO).

The Veteran filed his claim for service connection for his lichen planus chronicus condition on June 12, 2018, which is not within one year of his separation from service in October 2010. The Veteran and his representative have not set forth any substantive arguments that an earlier effective date is warranted for his heart condition, nor contend what the effective date they are seeking for his condition. The Board finds the June 12, 2018 claim for service connection for the Veteran's lichen planus chronicus is "later" than any entitlement may have arisen, and therefore is the appropriate effective date. 

The Board notes that at the July 2018 VA examination, the Veteran reported that he was initially treated in 1986 and again in 1990 to 1991 for his condition by dermatologists to include prescribed medication. However, the Veteran also stated that since then he has only done self-treatment with no followup since 2010.

The Board notes that VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it).

The Board notes that medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA's possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000).

Here, while the Veteran in the July 2018 VA examination reported treatment as early as 1986, the evidence of record does not show any intent to file a claim or application for service connection for lichen planus chronicus until June 12, 2018.

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board finds the preponderance of the evidence is against the Veteran's claim for effective date for his lichen planus chronicus condition. As such, that doctrine is not applicable in the appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Increased Rating

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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.

Where 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Right shoulder disability

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 

The Veteran is currently service connected for a right shoulder disability evaluated at 20 percent under Diagnostic Code 5201.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 

Prior to the regulatory change, under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a , Diagnostic Code 5201. 

Where limitation of motion of the arm is limited to 25 degrees from the side, DC 5201 provides a 30 percent evaluation for a minor extremity. The United States Court of Appeal for the Federal Circuit has held that DC 5201 does not provide separate ratings for limitations on flexion, extension, abduction and rotation, but rather permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013).

Standard range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level.

The Board notes that the Veteran is right hand dominant. In order for a rating in excess of 20 percent to be assigned, the competent evidence would need to show limitation of motion of the arm to midway between the side and shoulder level or to 25 degrees from the side (Diagnostic Code 5201).

With respect to disabilities of the shoulder, the February 2021 changes added parentheticals to clarify that limitation to "shoulder level" means 90 degrees from the spine, that midway between shoulder level and the side means 45 degrees, and that the limitation of motion described in Diagnostic Code 5201 is flexion and/or abduction. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021.

The Veteran was afforded a July 2018 VA examination. The Veteran reported chronic and progressive right shoulder pain since a 2010 injury. The Veteran noted that after his initial treatment and therapy following the injury, the Veteran did not followup and had been self-treating since.

The Veteran reported flareups when lifting 15 to 25 pounds above his shoulder caused stiffness, and functional impairment where his lifting and carrying was limited.

Upon range of motion (ROM) testing, the Veteran demonstrated 170 degrees flexion, 170 degrees abduction, and 70 degrees external and internal rotation of the right shoulder. The examiner noted the Veteran with loss of ROM due to pain and pain on all motions; the examiner also found the Veteran did not have pain with weight-bearing, or with active and passive weight-bearing.

Upon repetitive testing, the Veteran demonstrated 150 degrees flexion, 145 degrees abduction, and 65 degrees external rotation and 60 degrees internal rotation of the right shoulder. The examiner noted that the Veteran's ROM was also the same with flareups. The Veteran demonstrated 4/5 strength with no atrophy or ankylosis.

The examiner found the Veteran's right shoulder disability impacted his work as a security guard; the Veteran stated that he would get involved in altercations or have physical contact where "the pain at times severe and [the Veteran] cannot perform fully."

The Veteran was afforded an October 2019 VA examination. The Veteran reported pain since his inservice injury to include issues with ROM. The Veteran denied flareups.

The Veteran reported functional loss where the right shoulder "locks all the time, if I go to reach back it spasms. If I am doing household chores, sometimes when I'm playing with my grandkids, I feel like I'm going to drop them."

Upon range of motion (ROM) testing, the Veteran demonstrated 150 degrees flexion, 140 degrees abduction, 50 degrees external rotation and 55 degrees internal rotation of the right shoulder. The examiner noted the Veteran with loss of ROM due to pain, weakness, and lack of endurance; the Veteran was noted with pain on flexion, abduction and external rotation. The examiner also found the Veteran did not have pain with weight-bearing, or with active and passive weight-bearing.

Upon repetitive testing, the Veteran demonstrated 150 degrees flexion, 120 degrees abduction, and 65 degrees external rotation and 60 degrees internal rotation of the right shoulder. The Veteran demonstrated 5/5 strength with no atrophy, ankylosis or other physical impairments.

The examiner found the Veteran's right shoulder disability resulted in functional impact where he would have difficulty with repetitive overhead activities such as lifting, throwing, and reaching.

After a review of the evidence of record, the evidence does not show entitlement to an evaluation higher than 20 percent during the appeal period. In reaching this conclusion, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, and pain during repetitive use over time. A rating in excess of 20 percent for the Veteran's service-connected right shoulder disability is not warranted as the Veteran's symptoms are supported by pathology most consistent with the assigned 20 percent rating, and no higher. Even after taking into consideration the Veteran's complaints of pain, examination reports of record showed range of motion of the shoulder most consistent with a 20 percent rating.

The Board notes that at the Veteran's July 2018 VA examination the Veteran reported pain on all motions. The Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results." Id. at 43. Indeed, nothing in the case law supports the contention that a Veteran should be given maximum disability ratings simply because he or she may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. 

As explained above, although there may be pain on all movement, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant an increased schedular rating during this period. The Veteran's statements of limitations are deemed credible and probative evidence, but such evidence does not show that any additional limitation due to pain does not more nearly approximate a finding of limitation of motion of the arm to midway between the side and shoulder level or to 25 degrees from the side. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5214; DeLuca, 8 Vet. App. at 202 ; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

All potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Such a rating is not warranted under other potentially applicable rating criteria as there has been no competent evidence of ankylosis (Diagnostic Code 5200), or recurrent dislocation or malunion of the humerus (Diagnostic Code 5202). Additionally, no malunion, nonunion, or dislocation of the clavicle of scapula has been assessed by VA examiners or in VA treatment records. (Diagnostic Code 5203). Thus, no increased or separate evaluation is for assignment.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for the service-connected right shoulder disability. 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.

Lichen planus chronicus

The Veteran is currently service connected for lichen planus chronicus with a noncompensable rating under Diagnostic Code 7822.

A note to the criteria indicates that if rating the skin condition under Diagnostic Code 7800 (disfigurement of the head, face, or neck) or any of the diagnostic codes pertaining to scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) would result in a higher disability rating, the rater is directed to those codes. Id.

The Board notes the Schedule for Rating Skin Disabilities, to include Diagnostic Code 7822, was amended in August 2018 so that it more clearly reflects VA's policies concerning the evaluation of skin disorders. Although there is no specific effective date provided for ratings issued under the new criteria, there is no guidance on whether the regulations are retroactive. As a result, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (Aug. 13, 2018). Although the Veteran's claim was received by VA before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran's claim for an increased rating.

Under the version of Diagnostic Code 7822 in effect prior to August 13, 2018, a 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body or of exposed areas are affected; or when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or of exposed areas are affected or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118.

Under the revised Diagnostic Code 7822, a 10 percent rating requires 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 not 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 ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7822 (Aug. 13, 2018). A 30 percent rating requires at least one of the following: characteristic lesions involving 20 percent 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 requires 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 ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.

In addition, the August 2018 revision to the Schedule for Rating Skin Disabilities included a new regulation regarding systemic therapy. Under the new regulation, "systemic therapy" is treatment that is administered through any route other than the skin with "topical therapy" being treatment that is administered through the skin. 83 Fed. Reg. 32,592 (July 13, 2018). The new regulation creates a bright-line definition of topical and systemic treatment therapies. Prior to this change, VA regulation did not define topical or systemic treatment with determination of whether a claimant received topical or systemic treatment being based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017).

The Veteran was afforded a July 2018 VA examination. The Veteran reported a chronic skin rash affecting the penis prepuce or foreskin area occurring only during intercourse. The Veteran indicated that last occurrence of his condition was 4 months ago.

The Veteran stated that he received initial treatment in 1986 by a dermatologist and later received treatment from September 1990 to January 1991. The Veteran stated that he was treated with hydrocortisone (HC) 1 percent cream; the Veteran indicated that afterwards he self-treated since "they prescribed me HC 1 percent over and over again." The Veteran further reported that he has not followed up since his retirement in 2010.

The examiner found no evidence of disfigurement of the head, face or neck, and no benign or malignant skin neoplasms.

The examiner noted the Veteran use of topical corticosteroids in HC 1 percent cream and indicated the Veteran used this medication less than 6 weeks in the past 12 months. The examiner found no other treatment in the past 12 months and no other pertinent skin conditions or complications.

Upon physical examination the examiner did not find any visible skin condition affecting the total body area or exposed body area affected on the current skin examination. The examiner did not find any functional impact.

The Veteran was afforded an October 2019 VA examination. The Veteran reported chronic intermittent rash affecting the penis prepuce or foreskin area that would occur 1 to 2 times every 3 months lasting for 7 to 10 days. The Veteran stated that he was prescribed hydrocortisone cream for treatment; the examiner found this to be topical treatment and did not find the Veteran with any other treatment.

Upon physical examination, the examiner found the Veteran with dermatitis that did not affect his total body area or exposed area. The examiner did not find the Veteran with any other skin conditions, visible characteristic lesions, scarring or disfigurement of the head or neck, and no other pertinent physical complications or findings. The examiner did not find any functional impact.

The Board finds that the preponderance of the evidence is against the assigment of a compensable rating under the former or revised regulations. There is no probative evidence that the Veteran's condition has manifested with lesions or affected areas of greater than 5 percent of his entire body or exposed areas, which is required for a compensable rating. Additionally, the evidence does not indicate that the Veteran was prescribed or treated with any systemic therapy or intensive light therapy for his lichen planus chronicus during the appellate period. Additionally, he had not had any treatments or procedures other than systemic or topical medications in the past 12 months.

Although VA treatment records indicate that the Veteran has been prescribed a topical medication such as a corticosteroid, there is no medical evidence that treatment with such amounts to systemic therapy. As such is used topically; there is no indication in the record of side effects or symptoms affecting a large area of the body as a result of this medication; and there is no persuasive indication that this medication is like or similar to systemic corticosteroids or other immunosuppressive drugs. See Warren v. McDonald, 28 Vet. App. 194, 197 (2016).

All potentially applicable diagnostic codes have been considered, and there is no basis to assign a compensable rating for the Veteran's disability under a different diagnostic code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here, the Veteran's head, face, and neck are not affected by his lichen planus chronicus, and therefore Diagnostic Codes 7800 and 7801 do not apply. Additionally, as the Veteran does not have any scars associated with this condition, Diagnostic Code 7802, 7804, and 7805 are not applicable. Lastly, the Board has considered whether rating the Veteran's condition under Diagnostic 7806, dermatitis or eczema, would be more appropriate as the July 2018 and October 2019 VA examiners noted a diagnosis of dermatitis or eczema, which they specified to be lichen planus chronicus. However, the Board notes that rating the Veteran under Diagnostic Code 7806 would not entitle him to a higher rating, as Diagnostic Code 7806 and 7822 have identical rating criteria. 

Moreover, the Board acknowledges that the Veteran believes that his lichen planus chronicus is entitled to a compensable evaluation. The Board notes that he is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, this issue involves a medical inquiry that is complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). There is no evidence or assertion that the Veteran possesses the requisite skill, training, or experience to estimate his own body percentage affected by his disability. Additionally, the medical evidence does not show that the Veteran's chronic simplex was provided systemic therapy for treatment during the appellate period. 

In sum, the Board finds that a compensable rating for the Veteran's lichen planus chronicus is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990).

REASONS FOR REMAND

The Board finds that remand is warranted for additional development.

The January 2021 Court decision found the October 2019 Board decision erred on relying on a January 2018 VA medical opinion to adjudicate the Veteran's appeal. The Court noted that while the Board decision addressed causation and aggravation, the January 2018 opinion only addressed causation. See El-Amin v. Shinseki, 26Vet.App. 136, 140 (2013) (holding that a medical examination or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection); see also Walsh v. Wilkie, 32Vet.App.  300, 06-07 (2020) (holding that, when using obesity as an "intermediate step" in a secondary-service-connection analysis, such analysis may include linkage through secondary aggravation).

The Court also noted that the January 2018 opinion discussed the Veteran's obesity and that his service-connected depression did not affect his obesity; however, the Court found the opinion's rationale not supportive, finding that the provided rationale was insufficient for the Board to determine whether the Veteran's weight gain after service was affected by depression. As such, the Court found the January 2018 medical opinion inadequate, and remand warranted.

The Court also noted that the Veteran's representative raised the theory that the Veteran's obstructive sleep apnea may be considered a medically unexplained chronic multi-symptom illness (MUCMI) based on the Veteran's service in Southwest Asia. The Court found that the theory has been properly raised and the Board should also address this theory.

Concerning the Veteran's claim for erectile dysfunction, the Board also notes that the Veteran's representative in a July 2019 notice of disagreement (NOD) asserted the Veteran's erectile dysfunction was due to "musculoskeletal service-connected disabilities" and also referred to an article that related to depression and obesity. The Board notes the Veteran is service connected for a right shoulder and left wrist disability.

In an October 2019 VA examination, the examiner provided a negative etiology opinion but did not identify a baseline or address whether the Veteran's erectile dysfunction was aggravated by service-connected disabilities.

The Board notes that obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). The VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 at 1. Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10.

The Board notes that there are no opinions that address whether a service- connected disability caused a veteran to become obese; if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. As such, a VA medical opinion to answer these questions is warranted.

As the decision on the remanded issues could impact the decision on the Veteran's TDIU claim, the issues are inextricably intertwined. Thus, a remand of the TDIU claim is also required.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file all updated and outstanding treatment records.

2. Obtain a VA medical opinion on the Veteran's claimed obstructive sleep apnea and erectile dysfunction. The record and a copy of this remand must be made available to the examiner.

If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner should address the following:

(a.) Please state whether the symptoms relating to the Veteran's claimed obstructive sleep apnea is/are attributable to a known clinical diagnosis. If the Veteran does not currently have, but previously had any such condition, when did that condition resolve?

(b.) With respect to EACH diagnosis determined or identified, determine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disease, disability or symptoms were: 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness (MUCMI); or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis).

(c.) The examiner is informed that a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, characterized by certain overlapping symptoms and signs, and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered "medically unexplained." See 38 C.F.R. § 3.317.

(d.) IF the diagnosis is NOT considered a MUCMI, determine if it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's obstructive sleep apnea is due to or caused by the Veteran's service-connected major depressive disorder?

(e.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's erectile dysfunction is due to or caused by the Veteran's service-connected disabilities?

(f.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's obstructive sleep apnea is aggravated by the Veteran's service-connected major depressive disorder?

(g.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's erectile dysfunction is aggravated by the Veteran's service-connected disabilities?

(h.) "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should also establish a baseline level of disability prior to aggravation. If unable to establish a baseline, the examiner should explain why.

(i.) If the Veteran's erectile dysfunction are NOT caused or aggravated by his service-connected disabilities, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's erectile dysfunction had its onset during, or is otherwise related to the Veteran's active-duty service?

The examiner should also address the following:

(j.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities to include major depressive disorder caused him to become obese? 

(k.) Is it at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing the Veteran's obstructive sleep apnea?

(l.) Is it at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing the Veteran's erectile dysfunction?

(m.) Is it at least as likely as not (50% or better probability) that the Veteran would not have obstructive sleep apnea if he were not obese?

(n.) Is it at least as likely as not (50% or better probability) that the Veteran would not have erectile dysfunction if he were not obese?

(o.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.

(p.) The examiner is asked to address the Veteran's submitted lay statements from the Veteran, wife, and coworker; the submitted articles or referenced articles in April 2018 and in the July 2019 NOD; and the January 2018 and October 2018 VA examination findings.

(q.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies).

(r.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided.

(s.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. 

(t.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided.

3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. 

If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, 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.