Citation Nr: 21066840 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-18 675 DATE: November 2, 2021 ORDER An initial rating of 10 percent, but no higher, for residuals of cholecystectomy is granted. REMANDED Entitlement to a compensable rating for psoriasis is remanded. Service connection for left great toe joint pain is remanded. Service connection for chronic low back pain is remanded. FINDING OF FACT The Veteran's residuals of cholecystectomy manifest by no more than mild symptoms based on lay evidence of occasional gastrointestinal distress that necessitates dietary changes. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for residuals of cholecystectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7318. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from August 1982 to December 1982 and on active duty from January 1986 to February 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board denied service connection for left great toe, chronic fatigue syndrome, and chronic low back condition; a compensable rating for psoriasis, a compensable rating for residuals of cholecystectomy, a compensable rating for residual scars status post cholecystectomy, and a compensable rating for corneal scars of the left eye; and remanded the issues of service connection for chronic respiratory disorder, posttraumatic stress disorder (PTSD), obstructive sleep apnea, chronic headaches, left knee strain, and right knee disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2021 the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the December 2020 Board decision's denials of a compensable rating for psoriasis, a compensable rating for residuals of cholecystectomy, service connection for left great toe disability, and service connection for chronic low back pain; and remanded those claims to the Board for action consistent with the terms of the JMR. This JMR did not challenge the December 2020 Board decision's denial of service connection for chronic fatigue syndrome, a compensable initial rating for residual scars status post cholecystectomy, and a compensable rating for corneal scars of the left eye. As such, those issues are not before the Board. The remanded issues of service connection for chronic respiratory disorder, PTSD, obstructive sleep apnea, chronic headaches, left knee strain, and right knee disability have not been recertified to the Board and, therefore, are not addressed in this decision. Increased Rating 1. Initial rating for residuals of cholecystectomy The Veteran was originally granted service connection for residuals of cholecystectomy in the June 2018 rating decision on appeal. At that time, this disability was assigned a noncompensable (0 percent) rating effective December 5, 2017. The Veteran contends that he is entitled to a compensable rating for cholecystectomy residuals because he had occasional gastrointestinal distress and had to restrict his diet. The Veteran's residuals of cholecystectomy are currently rated Diagnostic Code 7318. Diagnostic Code 7318 addresses the removal of the gallbladder. It provides for a noncompensable evaluation for asymptomatic gallbladder removal. A 10 percent evaluation is warranted for gallbladder removal with mild symptoms. The highest 30 percent evaluation is reserved for gallbladder removal with severe symptoms. In a November 2017 letter, the Veteran's private chiropractor noted current cholecystectomy residuals of spontaneous nausea and pain caused by food intolerance, particularly foods with high fat content. An April 2018 VA gallbladder and pancreas conditions disability benefits questionnaire (DBQ) notes a history of cholecystectomy during active duty service. The Veteran reported that he had recovered well and everything healed. Nevertheless, he had to change his diet to avoid foods that caused burning sensation every other day and he drank carbonated beverages, which caused him to belch and settled his symptoms. The Veteran's cholecystectomy residuals did not require continuous medication for control. He did not have any of the typical signs or symptoms of gallbladder or pancreas conditions. The examiner did not find any other pertinent physical findings, complications, conditions, signs, or symptoms related to his cholecystectomy residuals. He did have four associated well-healed surgical scars that were not painful or unstable. These measured .8 cm by .1 cm, 3.5 cm by .1 cm, 1 cm by .1 cm, and 1 cm by .1 cm. This disability did not impact his ability to work. Based on the above, the Veteran does not have any objective residuals of cholecystectomy. Nevertheless, he is competent to provide lay evidence of occasional gastrointestinal distress that necessitates dietary changes. These lay statements indicate no more than mild symptoms. Resolving doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted. The Veteran's associated surgical scars are separately service connected with a noncompensable (0 percent) rating assigned effective December 5, 2017. As noted in the introduction, the Veteran did not challenge the December 2020 Board decision's denial of a compensable initial rating for these associated scars. All diagnostic codes pertaining to the digestive system have been considered. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, at 261-62. As the residuals of cholecystectomy do not manifest in symptoms other than subjective complaints of occasional abdominal distress necessitating dietary changes, a separate rating under a different diagnostic code for the residuals of cholecystectomy is not permissible. 38 C.F.R. §§ 4.14, 4.113, 4.114. REASONS FOR REMAND 1. A compensable initial rating for psoriasis is remanded. The April 2018 skin disease disability benefits questionnaire (DBQ) noted that the Veteran treated his psoriasis with over-the-counter coal tar topical preparation on a constant or near-constant basis. As noted in the June 2021 JMR, the Board erred in not addressing whether the Veteran's use of coal tar as a topical treatment for his psoriasis constitutes systemic therapy consistent with the Court's decision in Burton v. Wilkie, 30 Vet. App. 286, 292-95 (2018) (holding that for claims filed prior to August 13, 2018, systemic therapy is one that affects the entire body). The JMR instructed the Board to determine 1) whether the use of coal tar topical treatment affects the body as a whole in treating the Veteran's psoriasis, and 2) whether this treatment is "like" a corticosteroid or immunosuppressive drug, as required by the Court's decision in Burton. Therefore, additional medical evidence is necessary to guide the Board's analysis as to whether the Veteran's coal tar topical preparation was "systemic therapy such as corticosteroids or other immunosuppressive drugs" within the meaning of Diagnostic Code 7806. Service connection for left great toe joint pain is remanded. As noted in the June 2021 JMR, the September 2020 VA medical opinion is inadequate for rating purposes. The Board cannot make a fully-informed decision on the issue of service connection for left great toe because no VA examiner has opined whether his current complaints are related to his reported in-service left foot complaints, to include his lay statements regarding bruised and numb toes during active duty. 2. Service connection for chronic low back pain is remanded. As noted in the June 2021 JMR, a November 2017 private chiropractor notes an in-service onset of the Veteran's low back pain, and the Board erred by not affording the Veteran a VA examination with medical nexus opinion to address whether his currently diagnosed back condition is related to service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's use of coal tar topical treatment for psoriasis affects the body as a whole, and whether this topical treatment is "like" a corticosteroid or immunosuppressive drug. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's great left toe pain is at least as likely as not related to his active duty military service, to include his lay reports of in-service bruising and numbness and any complaints related to his feet. 3. Schedule the Veteran for a VA examination for his claimed low back disability. The examiner must review the claims file. The examiner should diagnose any current low back disability. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms, such as low back pain, that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's low back disability had its onset during his active duty military service, or that it is otherwise related to service? Provide a rationale to support the opinion. The rationale must expressly consider the November 2017 private chiropractor opinion that indicates the Veteran's low back pain had its onset during service. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.