Citation Nr: 21006213 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-51 424 DATE: February 3, 2021 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to an initial compensable rating for eczema/atopic dermatitis is denied. REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for osteoarthritis of the neck and shoulders is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of fibromyalgia. 2. For the entire appeal period, the Veteran’s eczema/dermatitis has covered less than five percent of the entire body and exposed area and has required no more than topical therapy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to a compensable rating for eczema/atopic dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 1976 to October 1979. She testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in June 2019. A transcript of the hearing is of record. 1. Entitlement to service connection for fibromyalgia. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that service connection for fibromyalgia is warranted. At her Board hearing, she contended that she began to have fibromyalgia/chronic fatigue in the late eighties. See Board Hearing Transcript, pg. 15. The Veteran’s claims file contains a voluminous amount of VA treatment records. A treatment record from May 2016 notes a medical history of fibromyalgia. However, the remainder of the records do not document a diagnosis of fibromyalgia, nor do they show that the Veteran experiences a similar, chronic fatigue or widespread musculoskeletal disability. Indeed, the Veteran specifically denied experiencing fatigue in May 2020, June 2019, and June 2013. The records do not otherwise contain any complaints of fatigue during the appeal period. It is worth noting that on two separate occasions, the Veteran complained of fatigue, however, the fatigue was found to be due to her PTSD and when her blood sugar is high. See June 2020 VA Examination Report; December 2009 VA Treatment Records. Put differently, the evidence shows that the Veteran sometimes experiences fatigue as part of her acquired psychiatric disability and diabetes, but the evidence does not establish a separate diagnosis. Indeed, the Veteran was afforded a VA examination for fibromyalgia in January 2020. At that time, the Veteran herself acknowledged that she had not been diagnosed with fibromyalgia. Instead, she stated she was told she had causalgia, which the examiner noted is documented as nerve related pain in the Veteran’s low back and neck VA examinations. The examiner found that the Veteran did not have any findings, signs, or symptoms attributable to fibromyalgia and a diagnosis of fibromyalgia could not be rendered. The Court has found that functional impairment is the cornerstone of a VA disability. Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). In this instance, the evidence does not show that the Veteran has fatigue or other similar symptoms that cause functional impairment in earning capacity. In addition, the weight of the evidence, which includes the Veteran’s own lay statements, indicates that she has never had a diagnosis of fibromyalgia. The existence of a current disability is a cornerstone of a service connection claim. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144. Therefore, the Veteran’s claim for service connection for fibromyalgia must be denied. 2. Entitlement to an initial compensable rating for eczema/atopic dermatitis. The Veteran contends that a compensable rating is warranted for her eczema/atopic dermatitis, which is currently rated under Diagnostic Code 7806. Effective August 13, 2018, the criteria for Diagnostic Code 7806 was amended. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). These revisions are applicable to claims received by VA on or after August 13, 2018. Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. The Veteran’s claim for an initial increased rating for eczema stems from an October 2013 rating decision, which granted service connection and assigned a noncompensable rating from August 16, 2013. By a September 2014 Notice of Disagreement, the Veteran disagreed with the rating assigned as well as the effective date. The Board denied an earlier effective date in its November 2019 decision. Therefore, the propriety of the Veteran’s initial rating only is currently before the Board. Under the new criteria, Diagnostic Code 7806 is rated under the General Rating Formula for the Skin. These criteria cannot be used to rate the Veteran’s service-connected skin disability prior to the effective date of August 13, 2018. Under this formula, a 60 percent is the highest available rating. The General Rating Formula For The Skin provides a 10 percent rating for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) 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. 38 C.F.R. § 4.118. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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. 38 C.F.R. § 4.118. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. 38 C.F.R. § 4.118. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Code 7806 (2019). Under the old rating criteria, Diagnostic Code 7806 provides that a 10 percent rating is assigned for 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 assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned for 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. 38 C.F.R. § 4.118, Code 7806 (2018). After having considered all of the evidence of record, the Board finds that a higher initial rating for the Veteran’s eczema/atopic dermatitis is not warranted at any time during the appeal period. At no point during the appeal period has the Veteran met the criteria for a higher 10 percent rating under either the old or new rating criteria. The Veteran was afforded a VA examination for her skin in October 2013. At that time, she endorsed bilateral elbow rashes/itching which sometimes spread to the knuckles of her hands. She stated she had been using topical medications for years. There was no scarring found as a result of the Veteran’s skin disability nor was there any systemic manifestations (fever, weight loss, or hypoproteinemia). Treatment was constant/near-constant use of lotion and hydrocortisone cream. The Veteran did not have any treatments or procedures other than topical medications in the 12 months prior. There were no debilitating or non-debilitating episodes as a result of her skin disability. On physical examination, the examiner determined that the Veteran’s eczema covered less than five percent of the total body area and less than five percent of the exposed area. When asked to describe appearance and location, the examiner stated, “scaling dry skin on extensors surfaces of both elbows, MCP dorsal surface of left hand with scaling slight erythema.” At her Board hearing, the Veteran endorsed having to use a lot of lotion and aloe vera for her skin. The Veteran’s VA treatment records also document that she has been prescribed hydrocortisone 2.5 percent cream (apply thin film to skin twice a day for skin irritation). The Veteran was afforded an additional VA examination for her skin in January 2020. The findings on physical examination were consistent with those found in October 2013. However, the Veteran reported that she now experiences a rash when she is extremely stressed which occurs every three to six months and lasts two to three weeks in duration. She reported using hydrocortisone or Temovate cream to resolve the rash. Near constant use of topical creams was again noted. The examiner noted “according to records Veteran was given a one-time prescription of Temovate steroid topical ointment 30-day supply 7-25-2019. Veteran otherwise reports use of hydrocortisone constantly in the past 12 months.” The evidence shows that the Veteran’s eczema/dermatitis, at worst, covers less than five percent of the total body area and less than five percent of the exposed area. In addition, although the evidence shows that the Veteran used hydrocortisone cream for her skin, this is topical in nature. DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy.’” Johnson v. Shulkin, 862 F.3d 1351. Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, that is not the case in this instance. In this case, the evidence is clear that the Veteran’s eczema impacts her elbows and knuckles only. Under both rating criteria some level of “systemic therapy” is required for a higher 10 percent rating. The Board has considered the Veteran’s lay statements in connection with her claim. Specifically, she has stated she uses a lot of lotion and aloe vera on her knuckles and elbows. However, at no point during the appeal period has she contended that she has required systemic therapy for the treatment of her eczema. As such, the Board finds that an initial compensable rating for the Veteran’s service-connected eczema is not warranted at any time during the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. In November 2019, the Board remanded the Veteran’s claim for service connection for bilateral carpal tunnel syndrome to obtain a VA medical opinion. Such opinion was obtained in January 2020. However, the opinion is incomplete. The VA examiner stated: The above information including Veteran in-service duties including typing was taken into consideration. STR is silent for complaints or diagnosis of carpal tunnel. Veteran by history reports that she was diagnosed with carpal tunnel in the 1990’s. Due to this information, Veteran carpal tunnel was less likely than not incurred ir or caused by the claimed in-service event or injury. First, the Board notes that the lack of contemporaneous service treatment records alone is an insufficient rationale for a negative opinion. See Hensley v. Brown, 5 Vet. App. 155 (1993). Second, although the VA examiner seemed to suggest that had the Veteran’s carpal tunnel syndrome been related to service, manifestations of such would have been shown during or shortly after service, the examiner did not state as much. Further, the examiner did not provide any medical explanation as to why delayed onset carpal tunnel syndrome was less likely than not. As such, remand is required for additional VA medical opinion. 2. Entitlement to service connection for obstructive sleep apnea; entitlement to service connection for a lumbar spine disorder; entitlement to service connection for diabetes mellitus; entitlement to service connection for asthma; and entitlement to service connection for osteoarthritis of the neck and shoulders, is remanded. The January 2020 VA medical opinion obtained in connection with the Veteran’s claims for service connection for obstructive sleep apnea, a lumbar spine disorder, diabetes mellitus, asthma, and osteoarthritis of the neck and shoulders is incomplete, and remand is required. As previously noted, the Veteran contends that her obesity, at least in part, caused her diabetes mellitus, asthma, a lumbar spine disorder, obstructive sleep apnea, and osteoarthritis of the neck and shoulders. Obesity may serve as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. In January 2020, a VA examiner opined that the Veteran’s obesity was less likely than not caused by her PTSD because “obesity is due to a willful behavior of increased caloric intake in comparison to caloric need. Veteran stated at time of examination that she ate more in order to gain weight to become obese.” In this instance, the Veteran has been service-connected for PSTD as a result of experiencing military sexual trauma. She has admitted and understands that her non-service connected PCOS has at least in part caused her obesity. However, she contends that she “didn’t fight – I allowed myself to stay large as a self-protective mechanism so I wouldn’t be raped again.” The examiner did not consider this contention and thus remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the January 2020 VA examiner, or another appropriate clinician, addressing the etiology of the Veteran’s bilateral carpal tunnel syndrome. After reviewing the entire claims file, the examiner is again asked to opine: (a.) Whether the Veteran’s bilateral carpal tunnel syndrome is at least as likely as not directly related to service. The examiner should address the fact that the Veteran’s in-service duties required her to type. The examiner should also address the likelihood that the Veteran’s in-service duties contributed to her bilateral carpal tunnel syndrome which was ultimately diagnosed approximately 15 years post-service. If the examiner feels that there is a clear cause of the Veteran’s carpal tunnel syndrome, he or she should state as much. A complete rationale for any medical opinion rendered must be provided. 2. Obtain an addendum opinion from the January 2020 VA examiner, or another appropriate clinician, addressing the etiology of the Veteran’s (1) diabetes mellitus; (2) asthma; (3) obstructive sleep apnea; (4) lumbar spine disorder; and (5) osteoarthritis of the shoulders and neck. The examiner must consider the Veteran’s contentions that in addition to having gained weight as a result of her PCOS, she did not “fight” the weight gain because she believed it would serve as a protective measure that would stop her from being sexually assaulted again. The Veteran is currently service-connected for PTSD as a result of military sexual trauma. She has also reported post-service instances of rape. The examiner is reminded that obesity can serve as an intermediary step to service connection. The evidence shows that on entry into service, the Veteran was noted to be 5’6, weighing 150 pounds. On discharge, she was noted to be obese. She weighed 187 pounds. On VA examination for her PTSD in December 2016, the examiner noted that the Veteran’s depressive disorder was caused by her financial stress and weight issues and her PTSD was related to her alleged military sexual trauma. The examiner was able to differentiate between some of the symptoms but stated “personality disorder, PTSD, and depression overlap and exacerbate each other.” After considering the Veteran’s contentions, and all of the other evidence of record, the examiner is again asked to opine: (a) Whether the Veteran’s obesity is at least as likely as not proximately due to her PTSD, if so: a. Whether her obesity at least as likely as not caused her diabetes mellitus; b. Whether her obesity at least as likely as not aggravated her diabetes mellitus; c. Whether her obesity at least as likely as not caused her asthma; d. Whether her obesity at least as likely as not aggravated her asthma; e. Whether her obesity at least as likely as not caused her obstructive sleep apnea f. Whether her obesity at least as likely as not aggravated her obstructive sleep apnea; g. Whether her obesity at least as likely as not caused her lumbar spine disorder; h. Whether her obesity at least as likely as not aggravated her lumbar spine disorder; i. Whether her obesity at least as likely as not caused her osteoarthritis in her neck and shoulders; and j. Whether her obesity at least as likely as not aggravated her osteoarthritis in her neck and shoulders.   A complete rationale for each medical opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.