Citation Nr: 21007482 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-19 229 DATE: February 9, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) (claimed as cardiovascular disease) is granted. Entitlement to a rating greater than 10 percent for service-connected eczematous-type lesions, claimed as skin condition (skin disability) is denied. REMANDED Entitlement to service connection for headaches/migraines to include as due to an undiagnosed illness is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's current coronary artery disease is related to his active service. 2. The evidence of record does not show that the Veteran's eczematous-type lesions affects 20 percent or more of his entire body or 20 percent or more of exposed areas; or, that he requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for coronary artery disease are met. 38 U.S.C. § 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for the Veteran's eczematous-type lesions are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Navy from August 1989 to July 1993, to include service in the Southwest Asia theatre of operations during the Persian Gulf War. During this time, he was awarded the Southwest Asia Service Medal, the Kuwait Liberation Medal, the Combat Action Ribbon, and the National Defense Service Medal, among other medals. The appeal for an increased rating claim for a skin disability was previously before the Board in October 2018 and March 2020, where the Board remanded for additional development. The appeal for service connection for coronary artery disease and headaches was also before the Board in October 2018 where the Board denied the claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, pursuant to a February 2020 joint motion for partial remand (JMPR), the Court vacated and remanded the portion of the Board's October 2018 decision denying entitlement to service connection for CAD and headaches. Accordingly, in July 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for actions consistent with the Court’s JMPR. The matter has been returned to the Board for further appellate review. These two appeal streams have been merged as they are both pending before the Board. As such, all three issues will be adjudicated in this decision. During the pendency of this appeal, in a September 2020 rating decision, the AOJ increased the Veteran’s disability rating from 0 to 10 percent, for his skin disability effective February 1, 2016. The Board notes that this did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for skin disability, remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board acknowledges that in September 2020 the Veteran submitted a VA Form 20-0996, “Decision Request: Supplemental claim” requesting review of the increased rating skin disability by the AOJ. The Board notes, however, that there is no mechanism for higher level review for a Supplemental Statement of the Case (SSOC) for issues already in appellate status before the Board, as opposed to issues prior to certification to the Board following rating decision or Statement of the Case (SOC). 1. Entitlement to service connection for coronary artery disease (CAD) (claimed as cardiovascular disease) The Veteran claims that he has CAD that is related to his active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). There is no dispute that the Veteran has a current diagnosis of coronary artery disease as noted in a July 2013 private treatment record. See Medical Treatment Record - Non-Government Facility. Even though the Veteran’s service treatment records (STRs) are silent for any diagnosis of CAD, they reflect notations of sinus brachycardia on a May 1993 EKG, and the presence of crystals on a 1993 urinalysis. See STRs. These in-service abnormal heart notations satisfy the second requirement for establishing service connection. The only remaining issue is whether the Veteran's CAD is etiologically related to service. The Veteran was afforded a VA examination in April 2014. The examiner remarked that the Veteran has a number of diagnoses already. These include coronary artery disease, mechanical back strain, and migraine headaches. These are diagnosable illnesses with specific etiologies. It is unlikely that any of these are specifically related to or a result of exposure to any toxins during Southwest Asia service. Therefore, it is unlikely that his migraine headaches and back pain and heart disease are due to service in Southwest Asia, because these are known diagnoses and diagnosable illnesses with specific etiologies. He appears to have a number of risk factors for the development of coronary artery disease, despite his young age. See April 2014 C&P Examination/Gulf War General Medical Examination Disability Benefits Questionnaire. In June 2014, a VA health care professional opined that the Veteran’s CAD is more likely due to these factors rather than his brachycardia, as all the other factors are known factors; and that the in-service brachycardia and urine crystals were more likely non-specific findings from his EKG and urinalysis. The examiner’s rationale was that the Veteran was diagnosed with CAD in July 2013 and that the Veteran also has been diagnosed with hypertension, sleep apnea, and hyperlipidemia, all of which are CAD risk factors. The examiner added that the Veteran also smoked for 16 yrs before quitting in 2003. See June 2014 C&P Examination. In July 2018, the Veteran’s private physician Dr, J. S. C., noted that the Veteran required a cardiac catherization with coronary intervention at an age of less than 45 years, despite the absence of any significant cardiac risk factors. The physician opined that the Veteran’s premature coronary artery disease is just as likely as not to have been caused by exposure to hazardous air and chemicals during Desert Storm as any other cause (i.e., 50 percent probability). See July 2018 Medical Record from CHI Alegent Creighton Clinic. In sum, the nexus opinions are in relative equipoise. However, the Board finds the private medical opinion provided by the Veteran's private care specialist especially probative given the unique position the Veteran's private physician is in as a clinical professional that has treated the Veteran over a course of several years. He is thus able to provide a more insightful opinion on the nature of the Veteran's disability. This unique position coupled with the physician's review of the Veteran's history and medical explanation of how he reached his conclusion bolsters the physician’s opinion above all others. The Court of Appeals for Veterans Claims has held that, most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus considers the Veteran's physician's July 2018 opinion to be more probative on the matter of the etiology of the Veteran's heart disability. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to service connection for coronary artery disease is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a rating greater than 10 percent for service-connected eczematous-type lesions, claimed as skin condition The Veteran claims that his service-connected skin disability warrants a rating greater than 10 percent for the entire period on appeal. 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 percentage ratings are based on the average impairment of earning capacity as a result of a 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7806 provides compensation for service-connected dermatitis or eczema. 38 C.F.R. § 4.118. Prior to August 13, 2018, a 0 percent rating is provided where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected, and no more than topical therapy was required during the past 12-month period. Id. A 10 percent rating is provided where: 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 was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 30 percent rating is provided where: 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 was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is provided where: more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. Also under this Diagnostic Code, scars may be rated under Diagnostic Codes 7800 to 7805, depending on the disability. Effective August 13, 2018, dermatitis or eczema are evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. A 0 percent rating is provided for no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. Id. A 10 percent rating is provided 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. When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114. In this case, the application of both old and new criteria results in the same evaluation. The Veteran underwent a VA examination in January 2017. The examiner noted that the Veteran's skin conditions required topical medications for less than 6 weeks in duration, but the examination does not indicate that the Veteran used systemic therapy. Additionally, the examiner indicated that the Veteran has not had any debilitating episodes in the past 12 months. It was noted that the Veteran has skin infections on less than 5 percent of total body area and less than 5 percent of total exposed skin area. The examiner noted that his condition did not impact his ability to work. See January 2017 C&P Examination. The Veteran underwent another VA examination in July 2020. His diagnoses included eczematous-type lesions, claimed as skin condition; tinea versicolor; folliculitis. The Veteran reported ongoing issues with approximately 10 episodes per year on his body related to eczema. He noted that he has been given a cream in the past from the VA but does not currently use it due to it not improving his symptoms. The Veteran describes the rash as being itchy, painful and burning. He has a small area on top of his head currently, but otherwise does not have any areas during this exam. The Veteran also reported occasional areas consistent with tinea versicolor. He reported he does not treat them, and they usually resolve on their own. The Veteran reported he has had flare ups of folliculitis with the most recent episode currently going on with the onset being about 2 months ago. It was noted that the Veteran is not on medication or other treatment or procedure for his skin conditions within the past 12 months. See July 2020 C&P Examination. In an August Addendum/ Clarification response, the July 2020 examiner noted that the total body area affected by the eczema and folliculitis is more than 5 percent but less than 20 percent. The total exposed area affected by the eczema and folliculitis is less than 5 percent. See August 2020 C&P Examination. The weight of the evidence indicates that the Veteran is not entitled to a disability rating greater than 10 percent, since the record fails to show the condition covered 20 percent or more of his body, or that he used systemic therapy to treat it. The Veteran contends that a next higher rating of 30 percent disability rating is warranted for the duration of the appeal period. The Board also acknowledges that the Veteran is competent and credible to describe the symptoms of his skin disability. McCartt v. West, 12 Vet. App. 164, 167-68 (1999). However, the statement appears to be based on the Veteran's self-reported medical condition, which is inconsistent with the medical evidence that shows that his skin disability is manifested at less than 20 percent of the body. Consequently, the Board gives more probative weight to the VA examination findings than to the Veteran's lay statements. Accordingly, a disability rating greater than 10 percent is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for headaches to include as due to an undiagnosed illness is remanded. The Veteran contends that he has headaches/migraines that are related to his Military service. A December 2020 VA examiner reviewed the Veteran’s claims file and remarked that neither migraines nor headaches have been diagnosed. The examiner opined that it is less likely any current headaches are related to any of the Veteran’s service connected disabilities, as a thorough record review and review of his contentions did not support this cause and effect relationship. The examiner added that however, the Veteran does carry a diagnosis of fibromyalgia, and since it is well known that fibromyalgia can cause a plethora of many symptoms, it is possible that headaches can be included in that symptomatology complex; although this is not mentioned in any record. See December 2020 C&P Examination. The Board regrets further delay but finds that the December 2020 VA examination is inadequate for adjudicative purposes. The examiner stated that neither headaches nor migraines has been identified or diagnosed in medical reports except for the subjective complaints by the Veteran. However, an April 2014 VA examination (completed by the same examiner) noted a diagnosis of “migraine including migraine variants”. Further, the December 2020 examination seems to relate the Veteran’s migraine/headache symptoms with fibromyalgia, but the April 2014 noted that the headache/migraine are diagnosable conditions with specific etiologies and are unlikely to be related to toxin exposure during the Veteran’s SW Asia service. The June 2014 VA examination also noted that the Veteran did not have any manifestations of migraines at separation, and no medical records that show chronicity/continuity of this issue 20 years since service, and that the headaches the Veteran had in service were sinus/URI related. A new examination is therefore warranted to reconcile the conflicting medical evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a qualified clinician to determine the etiology of the Veteran's complaints of headaches. The examiner is requested to review the claims folder, to include service treatment records and this remand. The examiner is asked to provide the following opinions: (a) whether the Veteran has an undiagnosed illness or a medically unexplained chronic multi symptom illness, that is a separate and distinct disability from his service-connected diffuse chronic musculoskeletal pain syndrome with characteristics of fibromyalgia and symptoms of chronic fatigue. (b) If the Veteran has disability manifested headaches, that are separate and distinct from his service-connected diffuse chronic musculoskeletal pain syndrome with characteristics of fibromyalgia and symptoms of chronic fatigue, is it at least as likely as not (50 percent or more probability) that the Veteran's claimed condition had its onset or are etiologically related to the Veteran's period of active service, including service in Southwest Asia? (c) If the answer to part (b) above is "no," is it at least as likely as not (50 percent probability or more) that any disability manifested by headaches, are (a) proximately due to or the result of the Veteran's service-connected disabilities, or (b) aggravated or permanently worsened by his service-connected disabilities? (d) Regarding the Veteran's complaints of headaches, if there is no diagnosed disability, is it at least as likely as not (a 50 percent or more probability) that any headache pain reaches the level of a functional impairment of earning capacity? Describe the impairment caused. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran's lay statements and complaints concerning his symptoms, including those made to medical providers and the June 2018 testimony before the Board. The reports of examination should include the complete rationale for all opinions expressed. If an opinion cannot be rendered without resorting to speculation the physician should explain why it would be speculative to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.