Citation Nr: 21070621 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-58 397 DATE: November 24, 2021 ORDER Entitlement to service connection for degenerative changes of the thoracolumbar spine (back disability) is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to an initial 10 percent rating, but not higher, for seborrheic dermatitis is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's back disability had its onset during service. 2. The evidence is at least evenly balanced as to whether the Veteran's OSA had its onset during service. 3. The evidence is at least evenly balanced as to whether the Veteran's seborrheic dermatitis has affected at least 5 percent, but less than 20 percent, of exposed areas, but not 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period, under the pre-amended criteria. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303, 3.304. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 3. The criteria for an initial 10 percent rating, but not higher, for seborrheic dermatitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.27, 4.118, diagnostic code (DC) 7806 (in effect prior to August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1995 to April 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for seborrheic dermatitis, evaluating it as noncompensable, and denied service connection for, among one other thing, a back injury, and OSA. In December 2014, the Veteran filed his notice of disagreement with the noncompensable rating for seborrheic dermatitis, and the denials of service connection for a back injury and OSA, was issued a statement of the case in October 2017, and in April 2019 perfected his appeal to the Board. In August 2021, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Back Disability The Veteran stated during his October 2018 decision review officer (DRO) hearing that he worked as a plane captain for helicopters during service, and reported hurting his back while carrying a heavy component aboard a carrier. The Veteran explained that he was treated during service, and eventually given light duty after reinjuring his back while carrying heavy materials, and stated that he is now seeking treatment from a chiropractor. He also reported that his back has not been the same since his initial injury, as it constantly "goes in and out". During his virtual Board hearing, the Veteran stated that he did not mention back problems during separation from service as he assumed since it was noted in his service treatment records, he did not need to discuss it. He stated that he did not seek treatment for a few years after service because he was not doing heavy lifting, but stated his back might "go out" when bending. The Veteran reported that he was only given one x-ray at a VA treatment center to determine if there were any broken bones, and was never provided with an MRI, but stated that his back issues have continued to worsen. March 1997 service treatment records reflect that the Veteran was treated for back muscular pain. In an October 2013 VA examination report, the examiner noted a diagnosis of degenerative changes of the thoracolumbar spine, with the Veteran stating that his back problem began around 1996 or 1997 due to his physical training. The examiner opined that the Veteran's back disability is less likely than not (less than a 50 percent probability) caused by, or related to active service, noting one complaint of back pain during service, and stating that the Veteran seemed to have been asymptomatic after service as he had not been to any physician for his back disability until his current examination. Thus, the examiner stated that this 17 year time span from his initial in-service complaint to present, plus the relative lack of symptoms referrable to his back, negates the possibility of service connection. The Veteran has provided competent and credible evidence that he currently suffers from back pain, his October 2013 VA examination report reflects a diagnosis of thoracolumbar spine degenerative changes, and his service treatment records indicate he was treated for muscular pain in his back during service. The dispositive issue is whether there is a relationship between the in-service back pain and the Veteran's current back disability. While the October 2013 examiner opined that the Veteran's back disability was less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness, the examiner based his opinion on a lack of treatment since service which is impermissible. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the October 2013 opinion is inadequate and afforded no probative weight. The medical opinion provided has been deemed inadequate, yet there is competent and credible lay evidence of back pain which the Veteran reported began in service and has continued and worsened since service. There is nothing in the claims file that indicates the Veteran's lay statements are not credible with respect to experiencing continuous symptoms since active military service, thus his statements are afforded significant probative weight. At this point the Board could remand the Veteran's claim for service connection for a new VA examination, but doing so could be construed as obtaining additional evidence for the sole purpose of denying the claim which is impermissible. 38 C.F.R. § § 3.304(c). ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The above reflects that the evidence is at least evenly balanced as to whether the Veteran's back disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. OSA The Veteran reported during his October 2018 DRO hearing that he went through multiple roommates when deployed on an aircraft carrier, and moved his bunk multiple times because people complained that he snored too loudly. He also reported that he was changed to work night shifts as he had been groggy and "out of it" first thing in the morning. During his virtual Board hearing, the Veteran testified that he frequently got complaints from roommates that he was a very loud snorer, and had to move his bunk or rooms because no one wanted to deal with his loud snoring. He also reported having difficulty going to sleep and staying asleep at night. He stated that he never sought treatment for his snoring as sleep apnea was not really discussed or recognized at that time. The Veteran reported no trouble sleeping prior to service, but problems with snoring since service until he was diagnosed with OSA and provided with a continuous positive airway pressure (CPAP) machine. He stated that the symptoms he had in service were the basis of his OSA diagnosis. A March 2013 VA sleep study report indicates that the Veteran reported frequent awakening and loud snoring, choking, and gasping during sleep. He was diagnosed with severe OSA. January 2019 VA treatment records reflect that the Veteran has a diagnosis of severe OSA. The evidence is at least evenly balanced as to whether the Veteran's OSA had its onset in service. The Veteran testified that fellow servicemembers complained about the symptoms upon which his sleep apnea diagnosis was made during the Veteran's service, and he also indicated that no such issues existed prior to service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). The Board finds these statements to be competent and credible. Additionally, the March 2013 VA sleep study reflects a diagnosis of OSA. Thus, both the current disability and the in-service incurrence elements for service connection have been satisfied. The evidence is thus at least evenly balanced as to whether the Veteran's OSA had its onset in service. The Veteran has attested to a continuity of sleep apnea symptomatology since service until he was prescribed a CPAP machine, and there is no medical opinion of record regarding the etiology of the Veteran's OSA. As there is no medical opinion addressing the etiology of the Veteran's OSA, the Board could remand for a medical opinion. In these circumstances, however, a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See 38 C.F.R. § 3.304 (c); Andrews v. McDonough, supra. The above evidence is sufficient to decide the claim. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F.3d at 1335. See also Maples v. Wilkie, No. 18-2016 (mem dec. Feb. 11, 2019) (vacating the Board's denial of a claim for service connection for sleep apnea and finding that the Veteran's "lay statements could be evidence sufficient to support his claim, and the mere fact that there is no medical evidence about his snoring does not, by itself, render his lay statements insufficient"); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's OSA had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for OSA is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). 3. Seborrheic Dermatitis The Veteran's seborrheic dermatitis is currently rated noncompensable under DC 7806. VA amended DC 7806, but claims pending on August 13, 2018, may be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. The Federal Circuit's interpretation of the term "systemic therapy" in the revised criteria applies throughout the entire period prior to the August 13, 2018, effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). Under pre-amended DC 7806, a 10 percent rating requires that 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 be affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: 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, 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 warranted where at least one of the following is present: Characteristic lesions involving 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 warranted for 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 this case, there is no indication that the Veteran's seborrheic dermatitis results in characteristic lesions under the general rating formula. Therefore, the pre-amended version is more favorable and will be applied. 38 C.F.R. § 4.118, DC 7806 (2017). During an October 2018 DRO hearing, the Veteran stated that he had an outbreak of a rash on his chest in a small amount, and that they come and go. He testified that his flare-ups were mostly on his chest, around his waist, forearms, forehead, and scalp in the past, but have cleared up on his forearms and waist. The Veteran reported that the seborrheic dermatitis has worsened around his forehead and scalp, with occasional outbreaks on his eyelids which cause pain. During the Veteran's Board hearing, he reported using over-the-counter hydrocortisone cream to treat his seborrheic dermatitis, which he stated flares up at least once or twice a month, and lasts about 1 to 2 weeks. The Veteran reported that when the seborrheic dermatitis spreads to his eyelids, it is very painful, and makes it hard to see. The Veteran's representative noted that the Veteran's rash at the time of the hearing was from his brow up to his hairline, down to his neck, cheeks, and around his ears. An October 2013 VA examination report indicates that there is no evidence of seborrheic dermatitis, and that the last acute rash was around 2 months prior. The examiner reported that the Veteran's skin conditions do not cause scarring or disfigurement of the head, face, or neck; the Veteran did not have any benign or malignant skin neoplasms; and the Veteran did not have any systemic manifestations due to any skin diseases. The Veteran reported treating his skin disease with topical steroid cream and Ketoconazole shampoo for 6 weeks or more, but not constantly. The examiner noted that the Veteran had not had any treatments or procedures other than topical medications in the past 12 months for his skin disease, nor any debilitating or non-debilitating episodes in the past 12 months. The Veteran's seborrheic dermatitis was noted to affect none of his total body area or exposed area. The examination report reflected that the Veteran did not have a benign or malignant neoplasm or metastases related to his dermatitis, or any other pertinent physical findings, complications, conditions, signs and/or symptoms, and the examiner reported that the Veteran's seborrheic dermatitis did not impact his ability to work. In a September 2017 VA examination report, the examiner indicated that the Veteran's seborrheic dermatitis did not cause scarring, or disfigurement of the head, face, or neck, and that he did not have any benign or malignant skin neoplasms. The examination report reflects the Veteran treats his seborrheic dermatitis with topical corticosteroids, specifically hydrocortisone, and had not had any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran did not report any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months, and the examiner noted less than 5 percent of the Veteran's exposed area and total body area was affected by seborrheic dermatitis. The examiner reported that the Veteran's seborrheic dermatitis did not impact his ability to work, and was of mild to moderate severity. The above examination findings reflect that the Veteran's seborrheic dermatitis has affected 5 to 20 percent of his exposed skin, warranting a higher, 10 percent rating. While the October 2013 and September 2017 VA examination reports reflect that less than 5 percent of the Veteran's exposed area or total body area was affected, the Veteran has stated that he suffers from flare-ups of his seborrheic dermatitis, but indicated that he did not suffer from flare-ups at the time of the examinations, and there is no indication that the Veteran lacks credibility. The Veteran also reported suffering from flare-ups on his chest, waist, forearms, forehead, and scalp, and is competent to report his seborrheic dermatitis symptomatology. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). Additionally, during the Veteran's Board hearing, his representative competently noted dermatitis affecting his brow up to his hairline, down to his neck, cheeks, and around his ears. Thus, the evidence reflects that the Veteran's seborrheic dermatitis affects at least 5 percent, but not more than 20 percent of his exposed area during a flare-up. While a higher rating than 10 percent could be warranted for systemic therapy, the above evidence reflects that the Veteran has used a topical steroid over a limited portion of his body throughout the appeal period, and this does not constitute systemic therapy under either the old definition of systemic therapy as interpreted by the Federal Circuit in Johnson or the new definition. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). (Continued on the next page) The evidence is thus at least evenly balanced as to whether the Veteran's seborrheic dermatitis more nearly approximates symptomatology contemplated by a higher 10 percent disability rating under the pre-amended criteria. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 10 percent rating, but not higher, for seborrheic dermatitis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, Counsel 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.