Citation Nr: 21006172 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-32 173A DATE: February 3, 2021 ORDER Service connection for a skin disorder other than acne, to include sarcoidosis and perioral dermatitis, is granted. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to October 24, 2020 and in excess of 20 percent thereafter for cervical spine strain is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 24, 2020 and in excess of 20 percent thereafter for lumbosacral spine strain is remanded. FINDINGS OF FACT 1. The Veteran’s skin disorder other than acne, to include sarcoidosis and perioral dermatitis, is due to an in-service incurrence. 2. Right upper extremity radiculopathy and bilateral lower extremity radiculopathy are manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for skin disorder other than acne, to include sarcoidosis and perioral dermatitis, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 2. The criteria for an initial rating in excess 20 percent for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8510. 3. The criteria for an initial rating in excess 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial rating in excess 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from November 2008 to November 2012 to include service in Afghanistan. The issues are on appeal from an August 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a hearing in February 2018. A transcript of this proceeding has been associated with the claims file. The issues were previously remanded by the Board in April 2018, October 2018, January 2020, and April 2020. In a November 2020 rating decision, the regional office (RO) granted increased ratings for cervical spine strain and lumbar spine strain at 20 percent disabling, effective October 24, 2020. However, the Veteran is presumed to seek the maximum available benefit for a disability. As such, these claims are still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, in the November 2020 rating decision, the RO granted service connection for ovarian cyst at noncompensable, effective November 4, 2012; radiculopathy of the right lower extremity and left lower extremity, each at 10 percent disabling, effective October 24, 2020; and radiculopathy of the right upper extremity at 20 percent disabling, effective October 24, 2020. Regarding the issue of service connection for ovarian cyst, this grant is considered a full grant of benefits. Therefore, the issue of entitlement to service connection for ovarian cyst is no longer before the Board. AB, 6 Vet. App. at 35 As the grants of service connection for radiculopathy of the bilateral lower extremities and right upper extremity are part and parcel of the Veteran’s increased rating claims for her service-connected cervical spine strain and lumbar spine strain, and the ratings do not commence from the earliest effective date stemming from the underlying claims for a higher rating for the service-connected cervical and lumbar spine strains, nor constitute the highest possible rating, the claims remain at issue. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); AB, supra. Thus, the issues on appeal have been recharacterized as listed on the title page of this decision. Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) 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 also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sarcoidosis is on the list of diseases presumed to have been incurred in-service and receive a one-year presumption. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).   1. Service connection for a skin disorder other than acne, to include sarcoidosis and perioral dermatitis The Veteran seeks service connection for a skin disorder other than acne, to include sarcoidosis and perioral dermatitis. The Board notes that the Veteran is already service-connected for acne. The Veteran’s service treatment records show complaints and diagnosis of skin abscesses (pruritus) causing itching, eczematous dermatitis, and dyshidrosis dermatitis. Symptoms of the Veteran’s skin issues manifested as itchiness, rash, and dry skin on her hands, around the mouth, and legs. Notably, the Veteran’s October 2008 enlistment evaluation and Report of Medical History did not reveal any issues with her skin. The Veteran complained of a rash on the back of her neck and reported no new environmental exposures in December 2008. The physician diagnosed the Veteran with contact dermatitis due to metal as the Veteran wore military identification tags without a plastic coating around the chain. In October 2010, the Veteran was diagnosed with dermatitis, and instructed to use hydrocortisone cream due to her continued and persistent rash and associated pruritis. The consulting physician included in the assessment that she was unclear as to what initial exposure was for the Veteran’s diagnosed allergic contact dermatitis. The Veteran complained of a rash around her mouth and under her ring finger in June 2012. She was instructed to bring in her engagement ring in so that it may be tested for nickel. VA medical records do not indicate that a test for nickel ever occurred. In a follow-up July 2012 consult, the Veteran was diagnosed with dermatitis on her legs and the physician opined that the rash around her mouth was due to certain chemicals in the Veteran’s toothpaste brand. In August 2012, the Veteran was also afforded a Pre-Discharge VA examination. The Veteran was diagnosed with resolved contact dermatitis and acne. The examiner noted that the Veteran had not used any medications for her skin disabilities in the past 12 months and there was no visible indication of any skin issue. The Veteran also underwent a separation evaluation in August 2012. In the Report of Medical History, the Veteran included prescribed creams for her skin issues in the current medication list and confirmed skin disease. She explained that she had used the prescribed creams for the past two years. In an accompanying August 2012 separation examination, the examiner also observed the Veteran’s current use of dermatology creams for skin issues and noted that the Veteran’s dermatitis was caused by nickel and tended to manifest as eczema outbreaks. Post-separation, VA treatment records demonstrated the Veteran complained of and sought treatment for skin issues including dermatitis, rashes, and eczema, unrelated to metal exposure. VA treatment records show continued complaints and treatment for dermatitis and eczema, unrelated to metal exposure. Importantly, a December 2013 physician observed the Veteran had a longstanding and severe rash assessed with dermatitis. In June 2015, the Veteran was diagnosed with dermatitis of unknown etiology. Upon physical evaluation during an August 2016 consult, a physician noted the Veteran’s neck displayed a hyperpigmented rash and the Veteran reported that it itched at times. She requested stronger cream to treat eczema symptoms in December 2017. The Veteran reported persistent and recurrent eczema for the past five years in June 2018. The Veteran was afforded VA examinations and an addendum medical opinion was obtained in May 2018, January2019 , February 2020, and October 2020. She was diagnosed with sarcoidosis by the May 2018 and January 2019 VA examiners. Each time, the VA examiner opined that the Veteran’s skin disorder was less likely than not due to active duty. However, the Board observes that this claim has been remanded four times in April 2018, October 2018, January 2020, and April 2020 because VA examiners did not provide sufficient rationale, mainly due to a failure to consider the Veteran’s prior diagnosis of contact dermatitis, when constructing their negative etiology opinions. An August 2020 VA treatment note demonstrates the Veteran requesting a prescription refill – one which had not been refilled in a while, to treat her skin. The Veteran was last afforded a VA examination in October 2020. Here, the examiner found the Veteran had no skin disorder and that all prior skin conditions had resolved. The Veteran reported to the examiner that her condition had improved, that she did not have a skin issue at the time of the examination, and that she had received treatment with steroid pills and cream. The examiner observed she had no visible indication of a skin disorder, and confusingly, noted that the Veteran denied receiving treatment with medication nor undergone any procedures in the last 12 months. In October 2020, the Veteran complained to a VA physician of dry, scaly skin and asked for medication. Her most recent active medication list from October 2020 includes Clobetasol propionate for skin irritation and DermaCerin for dry skin. The Board finds the October 2020 VA examination as insufficient for adjudication purposes. The VA examiner relied on inaccurate facts regarding the Veteran’s report regarding treatment during the VA examination, medical history, past lay statements, and the remaining medical evidence when stating that the Veteran did not have a current skin diagnosis and constructing an etiology opinion. Therefore, the Board finds the rationale and medical opinions of the May 2018, January 2019, February 2020, and October 2020 examiners are inadequate as a disconnect remains as to whether the Veteran’s skin disorders were caused or aggravated by her active duty. The Board has considered whether it may be necessary to remand this claim, once again, for a more adequate VA medical opinion on this matter. However, the Board has also considered whether, with resolution of reasonable doubt in the Veterans favor, the Board may grant the claim at this time. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno, 6 Vet. App. at 465. In this case, the Board finds that the evidence is at least in equipoise, and the lay testimony provides sufficient support for the present claim. The Board finds that lay testimony to be credible. There is no medical opinion of record that refutes that lay testimony that the Veteran began experiencing symptoms since service that were later diagnosed as eczema, dermatitis, and sarcoidosis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current skin disorder is related to service, and the evidence currently of record in this matter is legally sufficient to grant the claim without further development. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for skin disorder to include sarcoidosis and perioral dermatitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy The Veteran’s right upper extremity radiculopathy is initially rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 8510. The Veteran is right hand dominant, and therefore that is her major extremity. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group nerves. Mild incomplete paralysis of the major or minor extremity warrants a 20 percent rating. Moderate incomplete paralysis warrants a 40 percent rating for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis warrants a 50 percent rating for the major extremity and 40 percent for the minor extremity. Complete paralysis warrants a 70 percent rating for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8510. The term “incomplete paralysis,” indicates a degree of lost or impaired function substantially less than the type picture 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. Words such as “moderate” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Turning to the evidence, VA medical records are silent for radiculopathy complaints, treatment, or diagnosis. The Veteran was afforded several VA examinations for her neck and right shoulder in September 2012, May 2018, February 2020, and October 2020. In May 2018, the Veteran complained of neck pain radiating down her right shoulder to the hand. However, radiculopathy was explicitly denied until the October 2020 VA examination for the Veteran’s neck. Here, the examiner noted the Veteran exhibited mild symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, affecting the C5, C6, and C7 nerve roots. C5 and C6 nerve roots are of the upper radicular group while the C7 nerve root is of the middle radicular group. The Veteran was diagnosed with mild right upper extremity radiculopathy. Based on the evidence, the Board finds that an initial rating in excess of 20 percent is not warranted for the service-connected right upper extremity radiculopathy. Overall, the record, including VA examinations, reveals that the bilateral upper extremity symptoms did not manifest with incomplete paralysis of the ulnar or median nerve that was moderate in severity during the appeal. In fact, the Veteran’s symptoms were explicitly described as “mild” by the October 2020 VA examiner. The preponderance of the evidence is against entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8510. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy The Veteran is currently rated at 10 percent for right and left lower extremity radiculopathy (bilateral lower extremity radiculopathy) under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Complete paralysis warrants an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As noted above, the term “incomplete paralysis,” indicates a degree of lost or impaired function substantially less than the type picture 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. Words such as “moderate” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Turning to the evidence, VA treatment records are silent as to any complaints of or diagnosis of bilateral lower extremity radiculopathy. The Veteran has been afforded VA examinations for her lumbosacral spine in September 2012, May 2018, February 2020, and October 2020. In her February 2020 examination, she reported pain went down her back, hips, knees, and feet. However, she was not diagnosed with radiculopathy of the bilateral lower extremities until October 2020. At the October 2020 examination, the Veteran was found to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the bilateral lower extremities, involving the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). She was diagnosed with mild radiculopathy of the bilateral lower extremities. Additionally, the examiner noted that the Veteran’s service-connected lumbosacral strain was likely progressing to an additional neurological condition of bilateral lower extremities radiculopathy. Based on the evidence, the Board finds that an initial rating in excess of 10 percent for right and left lower extremity radiculopathy is not warranted as the record does not show “moderate” incomplete paralysis. Rather, the severity of her radiculopathy was explicitly described as “mild” by the October 2020 VA examiner. The preponderance of the evidence is against entitlement to an initial rating in excess of 10 percent for bilateral lower extremities radiculopathy. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent prior to October 24, 2020 and in excess of 20 percent thereafter for cervical spine strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent prior to October 24, 2020 and in excess of 20 percent thereafter for lumbosacral spine strain is remanded. The Veteran seeks increased ratings for her cervical spine strain and lumbosacral spine strain. In April 2020, the Board remanded these matters because VA examiners failed to conduct examinations that included testing for Correia required passive range of motion measurements or pain on non-weight bearing. Correia v. McDonald, 28 Vet. App. 168 (2016). The Veteran was afforded VA examinations for her cervical and lumbosacral spine strains in October 2020, which did appropriately adhere to Correia testing requirements, and the Veteran was subsequently granted an increased rating for each disability as of the VA examination date. However, as the Veteran’s October 2020 VA examination is evidence considered in an appeal period from October 24, 2020, the initial appeal period prior to that date remains without an opinion on passive range of motion measurements or pain on non-weight bearing, as required under Correia. The most current examination in the initial appeal period is from February 2020. The examiner stated that she could not perform these tests because they “cannot be performed or is not medically appropriate,” and provided no additional explanation. The Board remands for an addendum opinion on passive motion and pain with non-weight bearing. The examiner is reminded that if it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the April 2020 VA examiner or another examiner of similar expertise. The examiner is asked to opine on the Veteran’s passive range of motion measurements and pain with non-weight bearing. The examiner is reminded that if it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).   2. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.