Citation Nr: 21005420 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-05 627 DATE: February 1, 2021 ORDER Entitlement to service connection for right knee degenerative joint disease (DJD) and late effects of patella fracture is denied. Entitlement to service connection for cataracts and glaucoma (claimed as vision problems) is denied. Entitlement to an evaluation in excess of 10 percent for dermatitis with tinea pedis is denied. Entitlement to an evaluation in excess of 40 percent for eft sciatic nerve radiculopathy (previously evaluated as neuropathic pain syndrome) is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability was not attributable to service or caused or aggravated by his service-connected disability. 2. The Veteran’s cataracts and glaucoma was not attributable to service. 3. The Veteran’s skin disability covered at least 5 percent, but less than 20 percent of his entire body and exposed areas; but without systemic topical corticosteroid used for more than six weeks. 4. The Veteran’s left sciatic nerve radiculopathy was not manifested by severe incomplete paralysis of the sciatic nerve with marked muscular atrophy or complete paralysis of the sciatic nerve in which the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for cataracts and glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for a rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7806. 4. The criteria for a rating in excess of 40 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to August 1970 and from January 1974 to December 1992. The Veteran died in April 2014, and his surviving spouse has been substituted as the appellant. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The appellant presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. The hearing transcript is associated with the record. These matters were previously remanded by the Board for development in September 2019 and has been returned for appellate review. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for right knee DJD and late effects of patella fracture is denied. The appellant asserts that the Veteran’s right knee degenerative joint disease is attributable to service and/or was secondary to his cervical spine, shoulder, left knee (including left calf) disabilities. See February 2019 Board Hearing Transcript. The first and second Shedden and Wallin elements are met and not in dispute. The Veteran had diagnosed right knee degenerative joint disease and late effects of patella fracture. See September 2013 VA examination report and January 2020 addendum. Further, service treatment records (STRs) include an August 1991 report of medical history, wherein the Veteran reported that he now has or has ever had arthritis, rheumatism, or bursitis and broken bones and the Veteran is service connected for cervical spine, shoulder, and left knee disabilities. As such, the crux of the case centers on whether the Veteran’s right knee disability is related to service or service-connected cervical spine, shoulder, and/or left knee disabilities. In this regard, the September 2013 VA examiner opined that the Veteran’s right knee condition is less likely as not caused by or secondary to injury/event during active service or exposure to environmental hazards during Gulf War deployment as his knee injury post-dates military service and Gulf War deployment by at least two years. In a January 2020 addendum, the examiner opined that that the Veteran’s right knee disability did not have its onset in service, and it was not caused by any of the service-connected disabilities because it was caused by injuries sustained during a 1995 accident. This accident post-dates active duty service. The examiner further opined that, regarding aggravation, there was no documented evidence to suggest that the right knee condition was aggravated beyond its natural progression by any of his service connected conditions to include the Veteran’s cervical spine, shoulder, left knee (including left calf). In support of these findings, the examiner explained that the 2013 VA examination revealed near normal right knee range of motion (ROM) at 130 degrees of flexion. There was no objective evidence of painful motion. In regard to symptoms, he reported intermittent pain, stiffness, giving away and weakness in both knees. Hence, the right knee condition was clinically stable at that time. According to the literature, it is unlikely that conditions or injuries affecting one joint would have any substantial impact on the opposite joint or other weight-bearing structures unless it resulted in major muscle, nerve damage or a significant alteration in gait pattern. In 2013, the ROM for the left knee was completely normal which implied it was stable with no obvious impact on the right knee condition. There was no documented evidence pertaining to any associated nerve damage nor was there evidence of a significant gait abnormality due to the left knee condition. While he reported using a cane and brace for the right knee and back condition, there was no mention of any orthotic or prosthetic devices for the left knee. Additionally, conditions affecting the cervical spine or shoulder joint would have no bearing on the knee joint and anatomically the knees are not dependent on the cervical spine or shoulders for support. To the extent that the Veteran, appellant, and lay statements and testimony of record have asserted that the Veteran’s right knee condition was related to service and/or caused or aggravated by his service-connected cervical spine, shoulder, and/or left knee disabilities, there is no indication that they possessed the requisite medical knowledge, experience, or education to render a probative opinion involving medical causation. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, their statements regarding the etiology of right knee disability are insufficient to establish a nexus to service or service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470-472 (1994). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the claim for service connection for right knee disability. As the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule does not apply, and the claim for service connection for right knee disability is denied. See 38 U.S.C. § 5107. 2. Entitlement to service connection for cataracts and glaucoma (claimed as vision problems) is denied. The first and second Shedden elements are met and not in dispute. The Veteran had diagnosed suspected glaucoma based on his disc appearance, and early nuclear cataract O.U. See August 2013 VA examination report. Further, STRs, include a June 1989 service notation that the Veteran was having eye problems, including pinguecula medial aspect O.U., increased pigmentation of conjunctival, and asymptomatic exophthalmos. As such, the crux of the case centers on whether the Veteran’s eye condition was related to service. In a March 2020 VA addendum opinion, the examiner opined that it is less likely than not that the eye conditions were noted or caused the onset of his later diagnosed eye disability. In support of this opinion, the examiner explained that STRs reviewed noted 20/20 vision in each eye on routine physical exam; no specific detailed optometric or ophthalmologic exam records found in his records. At the time of VA examination in August 2013 it was noted the diagnoses noted above: glaucoma suspect, DM without retinopathy and early nuclear sclerosis OU. The examiner stated there is no documentation or evidence to suggest these diagnoses were present during his service. The examiner explained that because the conditions were not found to be were present and STRs did not note these eye conditions. To the extent that the Veteran, appellant, and lay statements and testimony of record have asserted that the Veteran’s eye condition was related to service, there is no indication that they possessed the requisite medical knowledge, experience, or education to render a probative opinion involving medical causation. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, their statements regarding the etiology of eye condition are insufficient to establish a nexus to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470-472 (1994). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the claim for service connection for eye disability. As the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule does not apply, and the claim for service connection for eye disability is denied. See 38 U.S.C. § 5107. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to an evaluation in excess of 10 percent for dermatitis with tinea pedis is denied. In an October 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection dermatitis with tinea pedis and assigned a noncompensable evaluation, effective January 13, 2012. In a January 2016 rating decision, the AOJ increased the Veteran’s rating to 10 percent for dermatitis with tinea pedis (claimed as skin condition of feet), effective January 13, 2012. The Veteran’s 10 percent rating for dermatitis with tinea pedis was assigned under Diagnostic Code 7806. See 38 C.F.R. § 4.118. During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. The amended regulations are only applicable to claims received on or after August 13, 2018, or where a claimant requests readjudication under the new criteria. The appellant did not specifically request consideration under the revised criteria of Diagnostic Code 7806. However, it is VA’s intent 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. As such, and even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider both versions. Of note, a rating under the new criteria cannot be effective prior to the August 13, 2018 amendment. Skin disability criteria effective prior to August 13, 2018: Under Diagnostic Code 7806, a 10 percent rating is warranted when 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 are affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Current skin disability criteria: Under Diagnostic Code 7806, a 10 percent rating is warranted when one of the following exists: 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 warranted when one of the following exists: characteristic lesions involving 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected; or, 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 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted when one of the following exists: 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. Under the old rating criteria for skin disabilities, a 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic treatment such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The probative evidence of record does not demonstrate a rating higher than the current 10 percent is warranted under the old rating criteria. Although the evidence shows the Veteran’s skin disability affected his bilateral feet, it does not show that his skin disability warranted a higher rating. The September 2013 VA skin examination report revealed the Veteran reported he had dry skin and tinea pedis to the skin on his bilateral feet. The report indicated that the Veteran’s skin condition did not cause scarring or disfigurement to the head, face, or neck; the Veteran did not have any benign or malignant skin neoplasms; and he did not have any systemic manifestations due to any skin diseases. Significantly, the September 2013 VA skin examination report indicated he did not have any systemic manifestations due to any skin diseases and his condition was treated with the lotion, Lubriderm, a topical over the counter lotion. Further, the physical examination revealed the dermatitis had a total body area of less than five percent with no exposed area and infections of the skin had a total body area of less than five percent with no exposed skin. Thus, the record does not support clinical findings showing his skin disability impacted 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas; or, that he underwent systemic treatment such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-months. Under the current criteria, the skin disability would not warrant more than a 10 percent rating. As noted above, the Veteran’s skin condition involved at least 5 percent, but less than 20 percent of the entire body and exposed areas. Additionally, treatment records and the VA examination reports did not show a history of intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of more than 6 weeks over the past 12-month period prior to his death. Significantly, the September 2013 VA skin examination report indicated he did not have any systemic manifestations due to any skin diseases and his condition was treated with the lotion, Lubriderm, a topical over the counter lotion. Further, the physical examination revealed the dermatitis had a total body area of less than five percent with no exposed area and infections of the skin had a total body area of less than five percent with no exposed skin. The Board acknowledges the Veteran’s reported symptoms due to his dermatitis with tinea pedis; however, the Board finds the symptoms were contemplated by the criteria for a 10 percent rating, whether under the old or new criteria and he did not meet nor more nearly approximate the criteria for a rating in excess of 10 percent for his service-connected skin disability. Thus, the claim is denied. 2. Entitlement to an evaluation in excess of 40 percent for left sciatic nerve radiculopathy (previously evaluated as neuropathic pain syndrome) is denied. In an October 2013 rating decision, the AOJ granted service connection for neuropathic pain and assigned a 10 percent rating from January 13, 2012. In a January 2016 rating decision, the AOJ increased the Veteran’s rating for his left sciatic nerve radiculopathy (also evaluated as neuropathic pain syndrome) to 40 percent, effective January 13, 2012. The Veteran’s left sciatic nerve radiculopathy was assigned a 40 percent rating under Diagnostic Code 8520. Under Diagnostic Code 8520, a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The next higher rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Id. The next higher, and highest, rating of 80 percent is warranted for complete paralysis of the sciatic nerve in which the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost. Id. For disease of the peripheral nerves, the term “incomplete paralysis” when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board notes that words such as “severe” and “moderate” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, the use of such terminology is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. § §§ 4.2, 4.6. After careful and thorough review of the evidence, the Board finds that the Veteran’s radiculopathy of the left sciatic nerve did not meet or more nearly approximate the criteria for a 60 percent rating. In this regard, upon September 2013 VA examination, the Veteran left sciatic nerve radiculopathy. Examination of the Veteran revealed he did not have constant pain of the left lower extremity pain; he did not have left lower extremity paresthesias and/or dysesthesias; did not have left lower extremity numbness; and did have intermittent pain of the left lower extremity. The examiner determined the overall severity of the Veteran’s left lower extremity radiculopathy was mild. Further, he did not have muscle atrophy; he was noted as being able to ambulate with the aid of cane; and the record did not support that the Veteran’s foot dangled and dropped with no active movement in the muscles below the knee. Based on the overall probative lay and medical evidence, the Board finds that the preponderance of the evidence shows that the Veteran’s radiculopathy of the left sciatic nerve had manifested in no worse than moderately severe incomplete paralysis of the left sciatic nerve, but had not been manifested by severe incomplete paralysis of the left side sciatic nerve with marked muscular atrophy or complete paralysis of the left side sciatic nerve in which the foot dangled and dropped, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable here. See 38 U.S.C. § 5107 (b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Accordingly, the Board finds that entitlement to a rating in excess of 40 percent for radiculopathy of the left sciatic nerve is not warranted. Thus, the claim is denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, Associate 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.