Citation Nr: 21065798 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-21 576 DATE: October 27, 2021 ORDER Entitlement to a disability rating higher than 30 percent for erythema multiforme is denied. Entitlement to an effective date prior to September 9, 2014 for the grant of a 30 percent disability rating for erythema multiforme is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's erythema multiforme has affected no more than 40 percent of the entire body or more than 20 percent of exposed areas; the skin disorder is not productive of recurrent debilitating episodes, has not required systemic therapy such as corticosteroids or other immunosuppressive treatment and does not cause disfigurement or scarring. 2. The Veteran filed a claim for compensation for erythema multiforme on September 9, 2014. There is no evidence of an earlier pending formal or informal claim. 3. It is not factually ascertainable that the Veteran's erythema multiforme increased in severity at any point in the year prior to September 9, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for erythema multiforme are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7806-7827. 2. The criteria for an effective date earlier than September 9, 2014, for the award of a 30 percent evaluation for erythema multiforme are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to October 1983. The claims for increase and an earlier effective date for erythema multiforme were remanded by the Board in June 2019 for additional development. In the same June 2019 decision, the Board denied service connection for sleep apnea. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued an order that vacated the June 2019 Board decision and remanded the sleep apnea issue for compliance with its Memorandum Decision. Increased Schedular Rating The Veteran seeks a higher evaluation for his service-connected erythema multiforme. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran reported that he had multiple recurrences of erythema multiforme sores in his mouth during the year. See April 2018 VA Form 9. The erythema multiforme is currently rated as 30 percent disabling under DCs 7806-7827. 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. 38 C.F.R. § 4.27. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). "VA's intent is that the 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." 83 Fed. Reg. 32,592 (July 13, 2018). Because the Veteran's claim was pending prior to August 13, 2018, the Board will consider both the old and new criteria and apply the more favorable. Prior to August 13, 2018, DC 7806 provides a 30 percent rating for skin disorders affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, 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 disability 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. Alternatively, rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. Under the previous version of DC 7827, a 30 percent rating is warranted for recurrent episodes of erythema multiforme occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy. A maximum 60 percent rating is available for recurrent debilitating episodes occurring at least four times during the past 12-month period despite ongoing immunosuppressive therapy. Alternatively, rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. Also 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. Effective August 13, 2018, skin disorders under DC 7806 are evaluated under the General Rating Formula for the Skin. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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 provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. 38 C.F.R. § 4.118. Both skin disorders may still be rated as disfigurement of the head, face, or neck under, or as scars, depending upon the predominant disability. Id. Under the current DC 7827, a 30 percent rating is assigned for recurrent mucosal, palmar, or plantar involvement not impairing mastication, use of hands, or ambulation, occurring four or more times over the past 12-month period; and requiring intermittent systemic therapy. A maximum 60 percent rating is available for recurrent mucosal, palmar, or plantar involvement impairing mastication, use of hands, or ambulation occurring four or more times over the past 12-month period despite ongoing immunosuppressive therapy. 38 C.F.R. § 4.118. For the purposes of new DC 7827, systemic therapy consists of one or more of the following treatment agents: immunosuppressives, antihistamines, or sympathomimetics. Id. Erythema multiforme may still also be rated as disfigurement of the head, face, or neck under, or as scars, depending upon the predominant disability. Id. Under the new schedule, "systemic therapy" refers to treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin and topical therapy refers to treatment that is administered through the skin. 38 C.F.R. § 4.118(a). The pertinent evidence in this case consists primarily of clinical findings from VA examinations in 2015 and 2019. During VA examination in April 2015, the Veteran reported yearly non-debilitating episodes of painful oral lesions that occurred in the mucus membranes, upper palate, lower inside lip, and corners of the lips. He also reported non-debilitating episodes of small, tender, flat, erythematous lesions at the right and left flank areas that occur about four times a year. The skin conditions did not cause scarring or disfigurement of the head face or neck and there were no systemic manifestations. The Veteran reported that in the past 12 months, he had taken prednisone and an oral antibiotic for less than 6 weeks and had not received any other treatments or experienced any debilitating episodes. He was not currently on any prescribed medications but used Tylenol or Advil as needed for painful lesions, eats soft foods, and avoids citrus and acidic foods/liquids when he has painful oral lesions and applies a moisturizing cream to affected side. On examination the Veteran did not have any visible skin conditions consistent with erythema multiforme. The mouth was clean with moist intact mucus membranes, with no lesions and good dentition repair. The lip was pink and slightly dry with slight erythema at the left corner that was slightly tender to touch. There was a slightly raised 1x.5cm lesion at the left flank. There were no lesions. There were no other pertinent physical findings noted and no functional impact on the Veteran's ability to work. There is no indication in the record that the Veteran sought or received regular treatment for multiple active recurrences of erythema multiforme since the VA examination. When examined by VA in December 2019, the Veteran reported that his skin disorder had worsened in severity with the sores recurring at least once every 2 months with flare-ups lasting 2-3 days. The oral lesions occur on the side of the jaw, back of the mouth, and under the tongue. When lesions do occur, he avoids bitter and salty foods and decreases oral intake to avoid aggravating the ulcers. He also avoids brushing his teeth and stated that he was given a special mouthwash by his dentist but did not recall the name. He received dentures in 2018 due to poor oral hygiene. The Veteran reported one emergency room visit due to the oral lesion in the past 2-3 years but does not otherwise seek medical attention during the flare-ups as the oral sores resolve by the time, he is able to be seen by a physician. The Veteran also reported painful itchy skin lesions on the shoulders and back and severe fatigue during flare-ups. He frequently uses topical over the counter alcohol on the cutaneous (skin) lesions. The examiner noted that a review of the record shows no documentation that the Veteran was prescribed systemic therapy for his erythema multiforme and was currently not receiving any treatment for it. Examination revealed erythema multiforme with recurrent skin lesions, oral lesions, and generalized fatigue affecting 20 to 40 percent of total body area and 5 but less than 20 percent of exposed areas (head, neck, and hands). There were shallow oral ulcers noted on the left buccal mucosa, tongue, and posterior oral cavity with surrounding erythematous rim. There were round erythematous papular lesions noted on the back, posterior left shoulder, dorsum of fingers on both hands, and both elbows (over the olecranon). There were diffuse excoriations noted on the back, but no lesions noted in the flexural regions of the upper or lower extremities. The examiner noted the episodes of erythema multiforme occurred four or more times a year with mucosal involvement impairing mastication and palmar involvement that did not impair use of the hands. The skin condition did not cause scarring or disfigurement and there were no other related pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner noted that during flare-ups of severe fatigue and malaise, the Veteran was still able to perform basic activities of daily living independently, but had some impairment performing personal hygiene and feeding (mastication). Based on the evidence, the Veteran's current disability picture resulting from his service-connected erythema multiforme does not meet or approximate the requirements for a higher disability rating. The evidence shows a recurrent skin condition primarily manifested by painful oral and skin lesions that generally require treatment with over-the counter medications and topical creams to manage symptoms. The portion of the Veteran's entire body affected is no more than 40 percent with less than 20 percent of exposed areas affected. There is no indication that the recurring debilitating episodes of erythema multiforme that required ongoing immunosuppressive therapy, or other systemic therapy. Accordingly, a 60 percent disability rating is not warranted the old or new criteria under DC 7806 or DC 7827. Nor does the evidence show that the Veteran's erythema multiforme is predominantly manifested by scarring or by disfigurement to warrant a higher disability rating under any other diagnostic codes available under 38 C.F.R. § 4.118 for assessing scars, as these codes require a showing of symptomatology not present in the Veteran's case. There are no medical findings of disfigurement of the head, face, or neck. There is also no evidence of tender, deep, unstable, or painful scars, limitation of motion due to scars, or scars covering an area of 144 square inches. Thus, diagnostic codes for rating these manifestations are not for application. See 38 C.F.R. § 4.118 DCs 7800, 7801, 7802, 7803, 7804, 7805. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Earlier Effective Date The Veteran is seeking an effective date earlier than September 9, 2014, for the assignment of a 30 percent disability rating for erythema multiforme. Under 38 U.S.C. § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 25, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. §§ 3.1(p), 3.155(a). The record shows that a February 1984 rating decision granted service connection for erythema multiforme and assigned a 10 percent evaluation rating effective October 29, 1983. In October 1986 the evaluation was reduced to 0 percent, effective February 1, 1987. The Veteran did not appeal the decision and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran's claim for an increased rating was received on September 9, 2014 and an August 2015 rating decision granted a 10 percent rating effective September 9, 2014. The Veteran disagreed with this determination and initiated this appeal. A subsequent March 2018 rating decision granted a 30 percent rating effective September 9, 2014, the date of the claim. The Veteran disagreed with the effective date and initiated this appeal requesting an effective date of increase back to 1987 when his 10 percent evaluation for erythema multiforme was reduced to zero percent. The appeal as to the effective date assignable for an increased rating rests on two separate, relatively simple determinations. First, there needs to be a finding as to the date on which the Veteran initiated his claim by formal or informal application. Second, there needs to be a finding as to the date the medical evidence of record showed that his entitlement to a 30 percent evaluation arose. In this case, there is no communication dated between the final October 1986 rating decision and the September 2014 claim that may reasonably be construed as an increased rating claim for the Veteran's erythema multiforme. 38 C.F.R. § 3.155(a). Given the finality of the October 1986 rating decision, the only way (absent clear and unmistakable error in a past decision) to assign an earlier effective date would be if it was factually ascertainable that an increase in erythema multiforme occurred in the year prior to the September 2014 claim. 38 C.F.R. § 3.400(o)(2). However, there are no medical records pertaining to the Veteran's erythema multiforme added in the year prior to his claim. See VA correspondence dated December 10, 2019. Thus, there are no clinical findings demonstrating an increased severity of symptoms, especially of such degree to indicate a 30 percent disability rating. See Hazan, 10 Vet. App. at 519. Given the lack of clinical findings, it cannot be said that it is factually "ascertainable that an increase in disability had occurred" prior to September 9, 2014, such that an earlier effective date may be assigned. Here, the first evidence supporting the assignment of a 30 rating is the December 2019 VA examination report, which indicates that the approximate total body area affected by erythema multiforme was 20 to 40 percent and on that basis the Regional Office (RO) awarded the 30 percent rating. See 38 C.F.R. § 4.118, DC 7806. It may therefore be argued that it was not until the December 2019 examination that it was factually ascertainable that an increase in the erythema multiforme occurred to warrant a 30 percent rating and that the proper effective date should actually be the date of the December 2019 examination. However, in granting the 30 percent increase from September 9, 2014, the RO essentially gave the Veteran the benefit of an earlier date. Thus, he has already received an effective date more generous than what the regulations allow. As the preponderance of the evidence is against an earlier effective date, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran is seeking service connection for sleep apnea. In his April 2018 Appeal to the Board, he stated that other sailors would complain of his sleeping while on active duty and that at that time he did not know he should have seen a doctor. In the March 2021 Memorandum Decision, the Court indicated that the Board provided an inadequate reasons or bases because it did not sufficiently discuss this favorable evidence or explain why a medical examination was unnecessary pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, and consistent with the Court's Order, the Board finds that this matter should be remanded to obtain the additional medical evidence necessary to adequately address the claim. By this remand, the Board makes no determination, express or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of his obstructive sleep apnea. The examiner should elicit a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history. Any appropriate testing should be conducted, and the results included in the examination report. After review of the record the examiner should state whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's sleep apnea had its onset during service. The opinion must discuss whether the disability picture presented is consistent with the Veteran's reports (lay observations) of onset in service and continuity of complaints since service and whether any, of the symptomatology documented in service treatment records represents an early manifestation of the disability. (Continued on the next page) In answering this question please discuss: 1) the medically known causes of and recognized risk factors for sleep apnea; 2) the objective medical findings in the service treatment records including any complaints of fatigue; and 3) the Veteran's assertions that he experienced sleep apnea symptoms (snoring, daytime sleepiness and fatigue) during and since service. If the Veteran's assertions are discounted, the examiner must provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to provide a complete rationale for the opinion offered, including discussion of the facts of this case and any medical studies or references relied upon. If he or she is unable to provide an opinion without resorting to speculation, they must provide a reasoned explanation for such conclusion. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.