Citation Nr: 21014851 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-19 033 DATE: March 15, 2021 ORDER An initial compensable rating for vitiligo is denied. Service connection for left lower extremity radiculopathy is denied. Service connection for right lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression, is remanded. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran’s vitiligo has not affected any of the exposed areas of his skin. 2. The evidence does not establish that the Veteran has a current diagnosis of left lower extremity radiculopathy. 3. The evidence does not establish that the Veteran has a current diagnosis of right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for vitiligo have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.27, 4.118, Diagnostic Code 7823. 2. The criteria for an award of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an award of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1978 to October 1981 and from February 2003 to July 2004, to include service in Iraq from May 2003 to May 2004. He also served in the U.S. Army Reserve. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. This case was previously before the Board in March 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. The issues on appeal previously included entitlement to service connection for axonal and demyelinating neuropathy of the right and left posterior tibial nerves, and for gastroesophageal reflux disease. During the pendency of the appeal, in October 2020, the RO granted those claims. As such, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Entitlement to an initial compensable rating for vitiligo. The Veteran contends that his vitiligo warrants a compensable rating. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s vitiligo is currently rated as noncompensably disabling under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7823. DC 7823 provides that vitiligo is rated as 10 percent disabling with exposed areas affected, and noncompensable with no exposed areas affected. A December 2014 VA examination report noted the Veteran’s diagnosis of vitiligo in the penis and reported that it was stable and only affected the genitalia and bilateral lower legs. The examiner found that the Veteran’s vitiligo did not cause scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms or systemic manifestations due to any skin diseases. He had not been treated with any oral or tropical medication in the past 12 months for any skin condition. The examination revealed that the skin condition did not affect any exposed areas, and less than five percent of the total area. An October 2019 VA examination noted that the Veteran was not currently on any medical treatment for his vitiligo. Examination revealed that the vitiligo affected less than five percent of the entire body and did not affect any exposed areas. The Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck. He did not have any benign or malignant skin neoplasms or systemic manifestations due to any skin diseases. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The examiner opined that is vitiligo did not impact his ability to work. The above examination findings reflect that the Veteran’s vitiligo has affected less than five percent of his entire body, and none of his exposed skin. Therefore, the Veteran’s vitiligo symptomatology does not more nearly approximate that contemplated by a higher 10 percent rating under DC 7823. A 10 percent rating under DC 7823 would require symptoms more nearly approximating vitiligo affecting exposed areas of his skin. There is no evidence of record that any of the Veteran’s exposed areas are affected by vitiligo, therefore a higher 10 percent rating is not warranted under DC 7823. As the above examination findings reflect that the requirements for a higher rating are not met, the weight of the evidence is against a compensable rating. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to service connection for left lower extremity radiculopathy. 3. Entitlement to service connection for right lower extremity radiculopathy. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks to establish service connection for radiculopathy of the lower extremities. He asserts that such are etiologically related to his active service. The question for the Board in this case is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there needs to be competent evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, the Board concludes that the Veteran has not been diagnosed with radiculopathy of the left or right lower extremity at any time during the pendency of his claims or recent to the filing of his claims. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). The medical evidence of record is silent for radiculopathy during or post-service. The Veteran was afforded a VA examination in November 2019. Following examination of the Veteran and review of the claims file, the examiner diagnosed bilateral posterior tibial axonal and demyelinating neuropathies. As noted in the Introduction, these disabilities are now service-connected. However, the examiner noted that radiculopathies were not found clinically. To the extent the Veteran believes he has a current diagnosis of radiculopathy of the left or right lower extremity, he is not competent to provide a diagnosis in this case. The issue of assigning a proper diagnosis is a medically complex matter that requires specialized training. Because he is not shown to have such training, he is not competent to render a diagnosis. In any event, the opinion of the VA examiner far outweighs his lay opinion in that regard. Given the absence of any present disability or in-service disease or injury, the Board finds that none of the elements of service connection have been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, is remanded. Although the Board regrets the additional delay, further development is necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (2011). The March 2019 Board remand asked the AOJ to obtain a VA medical examination and opinion to determine whether it was at least as likely as not that the Veteran’s acquired psychiatric disorder had its onset in, or is otherwise attributable to, the Veteran’s period of active service. The Board further instructed that, if it was determined that the disability did not have its onset in service, the examiner should opine whether it is at least as likely as not that such disability has been caused or aggravated by any of his service-connected disabilities. The AOJ obtained a VA medical opinion in November 2019. In response to the Board’s remand instructions, the examiner stated that she could not provide an opinion because there was no Axis I diagnosis. The Board finds, however, that the record contains conflicting medical findings. The medical record clearly includes a diagnosis of depressive disorder, not otherwise specified (NOS), during the appeal period. In this regard, a December 2014 VA examination report diagnosed the Veteran as having depressive disorder NOS. Also, a May 2019 VA treatment record notes depressive disorder NOS. The November 2019 examiner did not reconcile her opinion with the medical records clearly showing a diagnosis of depressive disorder. As such, the examiner’s opinion as it currently stands is inadequate for rating purposes. Because the November 2019 medical opinion is inadequate, the Board must remand the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); also see Stegall, 11 Vet. App. 268. The matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental health examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether the Veteran meets the DSM-5 criteria for any acquired psychiatric disorder. If so, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s acquired psychiatric disorder had its onset in, or is otherwise attributable to, the Veteran’s period of active service. If it is the examiner’s opinion that the Veteran does not meet the DSM-5 criteria for an acquired psychiatric diagnosis, the examiner should reconcile his or her opinion with the fact that the Veteran’s VA treatment records and prior VA examination reflect that he has had a diagnosis of depressive disorder NOS has been previously recorded during the appellate period. See, e.g., VA treatment records dated in August 2011 and May 2019; December 2014 VA examination. The examiner should also discuss the medical significance, if any, of the Veteran’s January 2009 report of medical history noting depression or excessive worry. The examiner should also discuss the Veteran’s lay statements. If it is the examiner’s opinion that it is unlikely that the Veteran’s acquired psychiatric disorder had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been caused or aggravated by any of his service-connected disabilities. (Continued on the next page)   A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claim remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.