Citation Nr: 21068182 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-46 470 DATE: November 9, 2021 ORDER Entitlement to an initial rating higher than 10 percent for cellulitis of the right ankle and foot is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include sarcoidosis, is remanded. Entitlement to service connection for esophageal cancer is remanded. Entitlement to service connection for residuals of a gallbladder removal is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's cellulitis of the right foot and ankle has affected less than 20 percent of the entire body, less than 20 percent of exposed area, and has not required systemic therapy. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 10 percent for cellulitis of the right ankle and foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7820-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1967 to March 1971. In December 2019, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). An October 2019 RO decision granted a TDIU, effective June 21, 2018. The Board observes that at the December 2019 Board hearing, the Veteran testified that his service-connected cellulitis of the right ankle and foot was not the reason he stopped working, and that he was not pursuing a TDIU issue. Therefore, the issue of entitlement to a TDIU is not before the Board. 1. Entitlement to an initial rating higher than 10 percent for cellulitis of the right ankle and foot. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his service-connected cellulitis of the right ankle and foot, currently rated at 10 percent, warrants a higher rating. The rating schedule has been amended during the pendency of this appeal. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. Under the criteria prior to the amendment, Diagnostic Code 7806 provided a 10 percent evaluation for dermatitis or eczema 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 warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted if the skin condition covers 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. The Federal Circuit has found that some applications of topical corticosteroids may constitute systemic therapy if administered on a large enough scale to affect the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). The Federal Circuit made clear that this determination should be made based on the facts of each individual case. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topic therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. In January 2015, a VA examination was conducted where the Veteran reported that his condition initially treated with antibiotics had resolved, but he continues to experience flare ups twice a year since the initial diagnosis and requires short term antibiotics. The examiner noted that the Veteran has been treated with oral antibiotics for flare ups of cellulitis of the right foot and ankle two times per year with total duration of less than six weeks in the past 12 months. The examiner noted that the Veteran has had no other treatments or procedures other than the oral antibiotics and has not had debilitating or non-debilitating episodes related to his condition. The examiner concluded that the Veteran's cellulitis of the right ankle and foot is currently in remission and does not cause functional impact. During the December 2019 Board hearing, the Veteran testified that during flare ups of his service-connected cellulitis of the right ankle and foot, his right foot, right ankle, and right leg would be covered. He also reported that he was using systemic corticosteroids and that physicians would change his antibiotics. In May 2021, a VA examination was conducted where the Veteran denied having further recurrent episodes of cellulitis involving his right ankle, foot, and calf since separation from service. The examiner noted that the Veteran has not been treated with medication, treatment, or procedures, in the past 12 months for a skin condition. On physical examination, the examiner noted that the Veteran has dermatophytosis, diagnosed as tinea versicolor described as hypopigmented macules and patches on the back, covering five to 20 percent of total body area. The examiner concluded that the Veteran's service-connected cellulitis of the right foot and ankle has not changed, noting that the Veteran's medical records do not show evidence of episodes of cellulitis since service and the examination was negative for evidence of right foot, ankle, and leg cellulitis. Considering the foregoing, the Board finds that a 10 percent disability rating is appropriate for the Veteran's service-connected cellulitis of the ankle and foot. A 30 percent rating is not warranted because the Veteran's condition does not cover 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, and as the January 2015 and May 2021 examinations noted, systemic therapy or intensive light therapy was not required for a total duration of six weeks or more during the past 12-month period. The Veteran's skin disability also did not manifest as characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. In fact, the January 2015 and May 2021 VA examinations note that the Veteran's condition is resolved or in remission. The Board has considered whether an evaluation under alternative Diagnostic Codes would result in a more favorable outcome for the Veteran. However, the evidence of record fails to show symptomatology which merits a higher evaluation for the Veteran's skin condition under those Diagnostic Codes. The Board acknowledges the Veteran's contentions and finds the Veteran competent. See Hearing Transcript, December 2019. However, as the most probative evidence of record is against a rating in excess of 10 percent, entitlement to a higher rating for the Veteran's service-connected cellulitis of the foot and ankle is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder, to include sarcoidosis, is remanded. 2. Entitlement to service connection for esophageal cancer is remanded. 3. Entitlement to service connection for residuals of a gallbladder removal is remanded. Service connection is in effect for a persistent depressive disorder, with anxious distress; prostate cancer; erectile dysfunction; left ear hearing loss; tinnitus; and for cellulitis of the right ankle and foot. The Veteran contends that he has a respiratory disorder, to include sarcoidosis; esophageal cancer; and residuals of a gallbladder removal, that are related to service, to include as due to Agent Orange exposure, asbestos exposure, and exposure to fumes from oil and gas tanks. The Veteran specifically maintains that he was exposed to Agent Orange as a result of service in the Republic of Vietnam. He states that he was exposed to asbestos while serving in many shipyards in the Navy. The Veteran reports that he measured fuel from oil and gas tanks, and that when those tanks were open, he inhaled oil and gas fumes. The Veteran's service treatment records do not show treatment for esophageal cancer or for gallbladder problems. Such records do show treatment for upper respiratory infections on two occasions during service, but do not show treatment for sarcoidosis. Post-service private and VA treatment records, including VA examination reports, show treatment for respiratory problems, including sarcoidosis and chronic obstructive pulmonary disease (COPD). Such records also show treatment for esophageal cancer, to include an esophagectomy, and for status post a cholecystectomy. An April 2014 statement from a medical doctor indicates that he was a thoracic surgeon that had taken over the practice of another physician who had performed an esophagectomy on the Veteran for esophageal cancer in 2004. The doctor reported that the typical causes of cancer were gastroesophageal reflux, alcohol use, and cigarette smoking. The doctor stated that with all cancers, there were likely other risk factors for esophageal cancer that were not well understood or studied. The doctor indicated that, therefore, it was possible that the Veteran's exposure to petroleum fumes may have played a role in the development of cancer. The doctor maintained that the exact cause of the Veteran's cancer was impossible to determine. The Board observes that April 2014 statement indicated that it was possible that the Veteran's exposure to petroleum fumes may have played a role in the development of his esophageal cancer. The Board observes that there is no indication that the doctor reviewed the Veteran's claims file. Although claims file review is not necessary, the probative value of a medical opinion is based on its reasoning and its predicate in the record so that the opinion is fully informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Board notes that the doctor's opinion is speculative in that he states it is "possible" the Veteran's exposure to petroleum fumes "may have" played a role in his development of his esophageal cancer. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). A May 2014 statement from a different medical doctor notes that the Veteran was a patient at his office since March 2014, and that he suffered from severe sarcoidosis, a chronic cough, shortness of breath, wheezing, and esophageal cancer. The May 2014 doctor reported that the Veteran served his country in three tours of active duty during the Vietnam conflict, and that he was exposed to chemicals and fumes which were suspected to have caused many, if not all, of those ailments that he suffered from. The Board observes that there is no indication that the May 2014 reviewed the Veteran's claims file. See Nieves, 22 Vet. App. at 295. Additionally, the Board notes that May 2014 doctor's opinion is speculative in that he states that the Veteran served his country in three tours of active duty during the Vietnam conflict, and that he was exposed to chemicals and fumes which were "suspected" to have caused many, if not all, of those ailments that he suffered from. See McLendon, 20 Vet. App. at 79, 85. A May 2016 VA respiratory conditions examination report includes a notation that the Veteran's claims file was reviewed. The diagnosis was sarcoidosis. The examiner indicated the Veteran had a diagnosis of sarcoidosis that was less likely as not incurred in, or caused by, his asbestos exposure during service. The examiner stated that it was likely that the Veteran had a diagnosis of sarcoidosis, and that he was currently using medication for his symptoms. The examiner reported that the risk factors for that disease were not known, and that there was a higher incident in African Americans between the ages of twenty and forty. The examiner indicated that it was not feasible to determine the underlying cause of the Veteran's sarcoidosis, and that a formal nexus between his sarcoidosis and any asbestos exposure could not be made. In a May 2016 addendum, the same examiner indicated that the Veteran's sarcoidosis was less likely than not (less than 50 percent) due to the conceded exposure to oil fumes while performing duties aboard the USS Tolovana (a refueling vessel). The examiner stated that the Veteran asserted that he had sarcoidosis related to being overly exposed to cigarette smoking, as a non-smoker, and to inhaling oil fumes while in the service. The examiner maintained that the Veteran's conceded exposure to the fumes while performing duties aboard the USS Tolovana was acknowledged. The examiner also referred to the May 2014 doctor's statement. The examiner stated that, however, there was no supportive rationale for the relationship in causation of esophageal cancer and exposure to chemical and fumes in service. The examiner reported that sarcoidosis was a multisystem inflammatory disease of unknown etiology, which usually presented with respiratory symptoms. It was noted that exposure to fuel oil may increase the risk of sarcoidosis with the potential of inflammatory changes in the lungs associated with sarcoidosis, but it was not a known etiology of sarcoidosis. The Board observes that the examiner, pursuant to the May 2016 VA respiratory conditions examination report, with the May 2016 addendum, found that the Veteran's sarcoidosis was not related to his exposure to asbestos during service, or to his exposure to oil fumes while performing duties on the USS Tolovana. The Board notes, however, that the examiner did not address whether the Veteran's sarcoidosis was related to his later conceded Agent Orange exposure during service. The examiner also did not address any reports by the Veteran of respiratory problems during and since service. The Veteran is competent to report respiratory problems during service and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A May 2016 VA esophageal conditions examination report includes a notation that the Veteran's claims file was reviewed. The diagnosis was esophageal cancer. The examiner indicated that the Veteran's diagnosed esophageal cancer was less likely as not incurred in, or caused by, his asbestos exposure during service. The examiner reported that the Veteran was diagnosed with esophageal cancer and that he underwent treatment. The examiner indicated that there was insufficient evidence to endorse a specific etiology for the Veteran's esophageal cancer and that the etiology of his esophageal cancer was undetermined. The examiner maintained that there was no evidence to support any formal relation between esophageal cancer and asbestos exposure. In a May 2016 addendum, the same examiner indicated that the Veteran's esophageal cancer was less likely than not (less than 50 percent probability) due to the conceded exposure to oil fumes while performing duties aboard the USS Tolovana (a refueling vessel). The examiner stated that the Veteran asserted that his esophageal cancer was related to exposure to aviation fuel oil and aviation gas without any type of mask. It was noted that the Veteran's exposure to oil fumes while performing duties aboard the USS Tolovana was acknowledged. The examiner also referred to the May 2014 doctor's statement. The examiner maintained that there was no supportive rationale for the relationship in causation of esophageal cancer and exposure to chemicals and fumes during service. The examiner also referred to the April 2014 statement. The examiner stated that the doctor's April 2014 statement suggested that the cause and etiology of the Veteran's current esophageal cancer was impossible to determine. The examiner reported that esophageal cancer was commonly associated with esophageal reflux and dietary habits, etc., in addition to cigarette smoking, which may increase the risk, but not the causation, of the esophageal cancer. The examiner maintained that the Veteran's conceded in-service exposure to oil fumes was not a known etiology of his esophageal condition, including esophageal cancer, which was also supported by the April 2014 statement, which suggested that the exact cause was undetermined. The Board observes that the examiner, pursuant to the May 2016 VA esophageal conditions examination report, with the May 2016 addendum, found that the Veteran's esophageal cancer was not related to his exposure to asbestos during service, or to his exposure to oil fumes while performing duties on the USS Tolovana. The Board notes, however, that the examiner did not address whether the Veteran's esophageal cancer was related to his later conceded Agent Orange exposure during service. The examiner also did not address any reports by the Veteran of esophageal problems during and since service. See Davidson, 581 F.3d at 1313. In light of the above, the Board remanded the issues to afford the Veteran VA examinations with responsive etiological opinions, following a thorough review of the entire claims file, as to his claim for service connection for a respiratory disorder, to include sarcoidosis; esophageal cancer; and residuals of a gallbladder removal. In May 2021, a VA respiratory conditions examination was conducted. After a review of the Veteran's medical records, the examiner concluded that she cannot determine if the Veteran has sarcoidosis. Instead, the examiner attempted to make a distinction between an active and inactive disease as the Veteran is currently only being treated with an albuterol inhaler. The examiner stated that the Veteran's pre-surgery CT scan of the chest and his 2021 chest-X-ray showed interstitial changes in the left upper lobe, that are not characteristic of either asbestosis or sarcoidosis. Nonetheless, the examiner stated that these abnormalities need to be investigated and recommended that the Veteran obtain a high-resolution CT scan of the lungs, PFT with DCLO, TLV, and DLCO, echocardiogram, 6-minute walk test, and a pulmonary consultation. In May 2021, a VA esophageal conditions examination was conducted. After a review of the Veteran's medical record, including the medical statements of record, and an in-person examination, the examiner opined that the Veteran's esophageal cancer is less likely than not due to Agent Orange exposure. The examiner reasoned that an article on the condition indicates that chronic gastric reflux is the strongest risk factor for developing adenocarcinoma of the esophagus, followed by other factors such as diets containing high Nitroso compounds, smoking, alcohol consumption, obesity, and H. pylori colonization. The examiner noted that the Veteran appears to have obstructive sleep apnea, which places him at increased risk for persistent GERD. Finally, the examiner noted that the medical article does not list Agent Orange, asbestos, or toxic fumes as a risk factor for the development of esophageal cancer. Therefore, the examiner concluded that the Veteran's esophageal cancer is more than likely than not due to chronic GERD. The examiner also noted that the Veteran reported having GERD-like symptoms while serving in the military and reported buying TUMS to treat his recurrent heartburn. However, the examiner stated that as the article notes that it is established that a long history of GERD is an independent risk factor for the development of adenocarcinoma of the esophagus, the examiner is unable to verify a period when the claimant had a normal esophageal function. Regarding secondary service connection, the examiner opined that the Veteran's condition is less likely than not aggravated beyond its natural progression by his service-connected hearing loss as the mechanism of his hearing loss has no association with the risk factors. The examiner did not comment on the Veteran's other service-connected disabilities. The Board observes that the May 2021 VA examiner opined that the Veteran's esophageal cancer is not related to his exposure to Agent orange during service. However, the examiner did not adequately address the Veteran's reports of respiratory problems during and since service and did not adequately address whether the Veteran's condition is secondary to his service-connected disabilities. Regarding the Veteran's claim for residuals of gall bladder removal, a May 2021 VA examination was conducted where the Veteran reported at least weekly episodes of post-cholecystectomy diarrhea. The examiner noted that this diarrhea develops when the drainage from the common duct, in the absence of the gallbladder, overcomes the re-absorptive capacity of the terminal ileum. Furthermore, the Veteran's GI physicians have prescribed moderate doses of PPIs and H2blocks to suppress his GERD, and these medications can also cause diarrhea. Thus, the examiner opined that the removal of the Veteran's gallbladder was not associated with his esophageal disorder but was performed because of the presence of asymptomatic gallstones found on his pre-surgery ultrasound. The examiner further opined that the Veteran's gallbladder condition has no basis for aggravation for any service-connected condition because it did not exist. The examiner also noted that the Veteran has gastroparesis, which resulted as a complication of his esophageal-gastric surgery for his esophageal adenocarcinoma. Although the May 2021 VA examiner concluded that the Veteran's gallbladder removal was performed because of the presence of asymptomatic gallstones, the Board observes that the examiner did not address Agent Orange exposure, asbestos exposure, and exposure to fumes from oil and gas tanks and whether these exposures are related to the Veteran's gallbladder removal and/or the presence of the asymptomatic gallstones that caused the gallbladder removal. Given the above inadequacies of the May 2021 VA examinations, the Board finds there has not been substantial compliance with its remand directives. See also Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any outstanding medical records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and/or etiology of the Veteran's respiratory disorder, to include sarcoidosis; esophageal cancer; and residuals of a gallbladder removal. All indicated tests should be conducted. The examiner must identify all diagnoses during the pendency of the appeal, including diagnoses related to respiratory disorders, to include sarcoidosis, residuals of a gallbladder removal, and esophageal cancer during the pendency of the appeal. The examiner must provide a medical opinion, as to whether it is at least as likely as not that any diagnosed respiratory disorders, to include sarcoidosis; esophageal cancer; and residuals of a gallbladder removal, are related to and/or had their onset during the Veteran's period of service, to specifically include his presumed in-service Agent Orange exposure and asbestos exposure, as well as his exposure to oil fumes. The examiner must address the May 2021 VA examination that noted asymptomatic gallstones as the cause of the Veteran's gallbladder removal and whether the gallstones are related to service, including exposure to Agent orange, asbestos exposure, or exposure to oil fumes. The examiner must specifically acknowledge and discuss any reports by the Veteran of respiratory problems, as well as symptoms he believes were due to his esophageal cancer and gallbladder problems, during service and since service. The examiner must state whether it is at least as likely as not that any diagnosed respiratory disorders, to include sarcoidosis; esophageal cancer; and residuals of a gallbladder removal, are caused or aggravated by Veteran's service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, 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.