Citation Nr: 21022721 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-48 115 DATE: April 19, 2021 ORDER Entitlement to an effective date of July 22, 2016, but no earlier, for the grant of service connection for costochondritis is granted. Entitlement to an initial compensable disability rating for the Veteran’s service-connected incomplete right bundle branch block is dismissed. Entitlement to an initial compensable disability rating for the Veteran’s service-connected residual scars, status post incomplete right bundle branch block, is dismissed. Entitlement to an initial compensable disability rating prior to January 13, 2020, and in excess of 20 percent thereafter, for the Veteran’s service-connected scars, status post lipoma excisions, is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. Petition to reopen entitlement to service connection for a skin disability, to include eczema, is granted. Entitlement to service connection for PTSD is granted. REMANDED Entitlement to an initial compensable disability rating for the Veteran’s service-connected costochondritis is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for a skin disability, to include eczema, is remanded. FINDINGS OF FACT 1. The Veteran submitted an intent to file a claim for VA benefits that was received in November 2016, within one year of his separation from active service; his formal claim for service connection for costochondritis was received in September 2017, within one year of his intent to file document. 2. In a written statement received on September 9, 2020, prior to the promulgation of a decision in the appeal, the Veteran expressed his intention to withdraw the claims seeking increased ratings for his scars (status post incomplete right bundle branch block and status post lipoma excisions) and atrioventricular block (incomplete right bundle branch block), as well as entitlement to a TDIU. 3. The November 2016 rating decision denying entitlement to service connection for a skin disability, to include eczema, became final, and evidence received since then is new and material and raises a reasonable possibility of substantiating the claim. 4. Resolving reasonable doubt in the Veteran’s favor, the evidence demonstrates that the Veteran has a diagnosis of PTSD that is linked to a corroborated in-service personal assault. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of July 22, 2016, but no earlier, for the grant of service connection for costochondritis have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for dismissal of entitlement to an initial compensable disability rating for the Veteran’s service-connected incomplete right bundle branch block have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55. 3. The criteria for dismissal of entitlement to an initial compensable disability rating for the Veteran’s service-connected residual scars, status post incomplete right bundle branch block, have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55. 4. The criteria for dismissal of entitlement to an initial compensable disability rating prior to January 13, 2020, and in excess of 20 percent thereafter, for the Veteran’s service-connected scars, status post lipoma excisions, have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55. 5. The criteria for dismissal of entitlement to a TDIU have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55. 6. The November 2016 rating decision is final as to the claim seeking entitlement to service connection for a skin disability, to include eczema. 38 U.S.C. § 7104 (2018); 38 C.F.R. § 20.1103. 7. New and material evidence sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a skin disability, to include eczema, has been received; the claim is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156. 8. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2011 to August 2011 and from April 2013 to July 2016. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2016, April 2017, November 2017, and July 2018 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an April 2019 Board hearing for some of the claims on appeal. A copy of the hearing transcript has been associated with the electronic claims file. In February 2021, the Veteran’s representative waived initial RO consideration of all evidence received since the prior adjudication of the claims in the February 2020 Statement of the Case, the March 2020 Statement of the case, the August 2020 Statement of the Case, and the September 2020 Supplemental Statement of the Case, as appropriate. The evidence submitted by the Veteran in March 2021 was unaccompanied by a request for initial RO consideration. 38 U.S.C. § 7105(e) (2018). Accordingly, the Board may proceed with its appellate review of the matters. In an October 2019 decision, the Board remanded claims seeking an earlier effective date for the award of service connection for asthma and migraine headaches. The Veteran withdrew these claims in a December 2019 written statement that was accepted by the RO. Thus, the claims are no longer on appeal. The October 2019 Board decision also remanded claims seeking entitlement to service connection for hemorrhoids and a throat disability. These claims were granted in a September 2020 rating decision and are no longer on appeal. Earlier Effective Date 1. Entitlement to an effective date of July 22, 2016, but no earlier, for the grant of service connection for costochondritis is granted. The Veteran was awarded entitlement to service connection for costochondritis, effective April 19, 2017. On appeal, he seeks an earlier effective date for the award of service connection. Generally, the effective date of an award of disability compensation, i.e., service connection, is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for service connection is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). In August 2016, the Veteran filed a formal claim, which in relevant part, asserted entitlement to service connection for chest pain. The RO adjudicated this issue in a November 2016 rating decision and awarded service connection for incomplete right bundle branch block, claimed as abnormal heart and chest pain. On November 29, 2016, the Veteran filed an “intent to file” document. The RO received a formal claim seeking entitlement to service connection for costochondritis on September 13, 2017. The RO granted entitlement to service connection for costochondritis in a November 2017 rating decision, and assigned a noncompensable disability rating, effective April 19, 2017. In April 2018, the Veteran filed a Notice of Disagreement challenging the assigned effective date and rating. The RO issued a Statement of the Case on the matters in August 2020. According to the Veterans Appeals Control and Locator System (VACOLS), the RO accepted a September 8, 2020 statement as a valid VA Form 9, Substantive Appeal. The Board has reviewed this document, but finds no specific statement addressing costochondritis. Nevertheless, the filing of a VA Form 9 is not jurisdictional, and the RO has led the Veteran to believe his appeals regarding the proper effective date and evaluation for his service-connected costochondritis remain on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, the Board has jurisdiction to consider the matters. In this matter, the Veteran’s November 2016 intent to file was received within one year of his separation from active duty service, and the September 2017 formal claim for service connection was received within one year of the November 2016 intent to file. Resolving reasonable doubt in the Veteran’s favor, an earlier effective date of July 22, 2016, the day following the Veteran’s separation from active duty service, is warranted for the award of service connection for costochondritis. The increased rating claim for costochondritis is addressed in the “Reasons for Remand” section below. Dismissed Claims 2. Entitlement to an initial compensable disability rating for the Veteran’s service-connected incomplete right bundle branch block is dismissed. 3. Entitlement to an initial compensable disability rating for the Veteran’s service-connected residual scars, status post incomplete right bundle branch block, is dismissed. 4. Entitlement to an initial compensable disability rating prior to January 13, 2020, and in excess of 20 percent thereafter, for the Veteran’s service-connected scars, status post lipoma excisions, is dismissed. 5. Entitlement to a TDIU is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2018). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, the Veteran submitted a written statement received on September 9, 2020, where, in relevant part, he stated: I’m writing this statement to request that the remaining items on my remanded 2016 appeal [] be removed. The items that I’m requesting to be removed are increased rating scarring, increased rating atrioventricular block…and 100% rating for individual unemployability…. In is unambiguously clear from this written statement that the Veteran intended to withdraw his claims seeking increased ratings for his service-connected incomplete right bundle branch block, increased ratings for the scars status post incomplete right bundle branch block and status post lipoma excisions, as well as entitlement to a TDIU. The Veteran’s representative filed a brief on these claims in November 2020, however this fact cannot vitiate the Veteran’s withdrawal, as it took effect on the date that it was received by VA. As the September 9, 2020 written withdrawal listed the Veteran’s name, the applicable VA file number, and contained a statement identifying which specific issues have bene withdrawn, the regulatory requirements of 38 C.F.R. § 19.55 have been met. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). As no more allegations of errors of fact or law remain regarding these claims, the Board does not have jurisdiction to review the appeals and they are dismissed. New and Material Evidence 6. Petition to reopen entitlement to service connection for a skin disability, to include eczema, is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran was denied entitlement to service connection for eczema in a November 2016 rating decision. The Veteran did not submit new and material evidence or a Notice of Disagreement within one year of the mailing of this rating decision. 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). Consequently, the November 2016 rating decision became final as to this claim. 38 C.F.R. § 20.1103. The Board notes that both the Veteran and the November 2016 rating decision characterized the Veteran’s claim as one seeking entitlement to service connection for eczema, but it is clear from the Veteran’s description of the claim and the medical evidence, that the Veteran was seeking service connection for a skin rash, generally. When claims of varying diagnoses and symptoms are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, “the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim ‘based upon distinctly diagnosed diseases or injuries’ or whether it is evidence tending to substantiate an element of a previously adjudicated matter.” Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337(Fed. Cir. 2008)). Here, the current claim on appeal is not based on a newly diagnosed condition, but is instead a further attempt to cure the issues identified in the November 2016 rating decision. Therefore, in accordance with Boggs and Velez, new and material evidence is required to reopen the previously disallowed claim. In accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), and the Veteran’s description of the claim; the symptoms the Veteran describes; and the information the Veteran has submitted, the Board has broadened and recharacterized the claim as one seeking service connection for a skin disability, to include eczema. Following the prior final disallowance of the claim in the November 2016 rating decision, the matter was readjudicated in November 2017, May 2018, and July 2018 rating decisions. The Veteran filed a timely Notice of Disagreement in July 2018 as to this claim. The claim had been denied in the November 2016 rating decision, in part, due to the lack of a current disability. VA treatment records from September 2017 documented a telephone call from the Veteran, where he reported a rash on the right side of his chest. Evidence received in April 2018 showed that the Veteran had been prescribed medication for a “skin rash.” VA treatment records from October 2018 documented the Veteran’s lay reports that his skin rash had started to spread. VA treatment records dated in November 2018 showed that the Veteran had been prescribed fluocinonide cream “for eczema.” This evidence is new, as it was not available at the time of the prior final November 2016 disallowance, and it is material, as it raises questions regarding the unestablished fact of whether the Veteran has experienced a current disability during the appellate period. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-18. Accordingly, this claim is reopened and is addressed further in the “Reasons for Remand” section below. Service Connection 7. Entitlement to service connection for PTSD is granted. The Veteran is already service connected for major depressive disorder, recurrent, severe, with anxious distress and mood congruent psychotic features. Despite this, the Veteran seeks entitlement to service connection for PTSD based on an alleged in-service personal assault. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called “nexus” requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. For claims specific to PTSD, there must be: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). For all applications for benefits received by VA or pending before the agency of original jurisdiction on or after August 4, 2014, DSM-5 will apply. Typically, outside of enumerated exceptions irrelevant to the current claim, a veteran’s lay testimony, alone, is not sufficient to establish that a stressor occurred. See 38 C.F.R. § 3.304(f)(1-4). Nevertheless, if a PTSD claim is based on in-service personal assault, a variety of evidence sources may be used to corroborate the Veteran’s account of the stressor incident, to include corroborating statements from fellow servicemembers. See 38 C.F.R. § 3.304(f)(5). The Veteran has alleged that he was physically attacked in January 2014 by his roommate, and as a result of this trauma, he began experiencing severe psychological symptoms throughout the remainder of his active duty service. He alleged than on January 24, 2015, his roommate attacked him in the barracks while he was attempting to brush his teeth. He was hit in the head and choked. He stated that the physical attack lasted 7 to 8 minutes. He stated that he was seen by emergency personnel for injuries to his head and wrist as a result of his attack. Following the attack, other service members teased the Veteran and mocked him because of the situation. He stated that the physical attack and the later harassment caused him to become depressed and contemplate suicide. See 04/18/17 VA Form 21-0781a. The Veteran’s service treatment records confirm that he was treated in the emergency department in Ft. Riley, Kansas on January 25, 2014 following an in-service personal assault. Service treatment records from January 31, 2014 document that the Veteran was following up after an emergency room visit on January 25, 2014 because of a head and hand injury that occurred after being attacked by his roommate. Following this attack, the Veteran’s service treatment records document in-service treatment for depression, as well as suicidal ideation with intent and plans. In light of this evidence, the Board finds that the Veteran’s report of an in-service personal assault has been corroborated. At a November 2016 VA psychiatric examination, the Veteran was diagnosed with adjustment disorder with depressed mood. At a VA psychiatric examination in April 2017, the VA examiner stated that the Veteran’s psychiatric diagnosis had progressed to major depressive disorder, but the VA examiner concluded that the Veteran did not satisfy the DSM-5 criteria for a PTSD diagnosis. The VA examiner stated that although the Veteran was assaulted by his roommate during service and it was a frightening experience, it did not result in exposure to death or a serious injury sufficient to meet criterion A for a diagnosis of PTSD. The Veteran attended VA psychiatric examinations in October 2017, March 2018, August 2018, October 2018, March 2019, and December 2019, where he was again assessed with a DSM-5 diagnosis of major depressive disorder. Despite the above VA examinations, the Veteran’s private and VA treatment records indicate that the Veteran has been diagnosed with PTSD based on his in-service physical assault during the appellate period. For instance VA treatment records from October 2020 list an Axis I diagnosis of chronic PTSD based, in part, on the psychosocial stressor of memories related to his corroborated in-service physical assault. It must be noted that this diagnosis was based on the DSM-IV criteria. The Veteran has also submitted what appear to be VA treatment records from September 2017, where a nurse practitioner indicated that he “plan[ned] on entering PTSD diagnosis.” The records also contain a VA treatment from September 2017 where a VA licensed clinical social worker charted a diagnosis of PTSD. There is back and forth in the VA treatment records as to whether the Veteran’s psychiatric symptoms truly warranted a PTSD diagnosis. The Veteran has also submitted a private treatment record dated in March 2017 by provider P.L. which included a diagnosis of PTSD under the DSM-5 criteria based on an unidentified traumatic event the Veteran had experienced. The Board finds that the conflicting evidence is in relative equipoise on the issue of whether the Veteran has carried a PTSD diagnosis due to an in-service physical assault during the appellate period. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the elements of service connection for PTSD have been met, and the Veteran’s appeal seeking service connection for PTSD is granted. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for the Veteran’s service-connected costochondritis is remanded. In this decision, the Board granted an earlier effective date of July 22, 2016 for the award of service connection for costochondritis. The corresponding increased rating claim must be remanded to allow the RO to assign an initial rating for the newly granted period of service connection. 2. Entitlement to service connection for allergies is remanded. The Veteran seeks entitlement to service connection for allergies. He claims this condition was incurred in service, or in the alternative, it is secondary to his service-connected asthma. The Veteran’s claim seeking entitlement to service connection for allergies was initially denied in an August 2017 rating decision, due in part, to a lack of a current disability. New evidence received in April 2018 showed an assessment of allergic rhinitis. As new and material evidence was received within one year of the mailing of the August 2017 rating decision, it did not become final as to this issue, and despite additional readjudications of the claim, it has remained pending. 38 C.F.R. § 3.156(b). A new and material evidence analysis is not warranted. To date, there is no probative evidence establishing that the Veteran experienced allergic rhinitis during service or that his current allergic rhinitis was otherwise etiologically related to or incurred during his active duty service. Thus, the Board shall not order any evidentiary development regarding a direct service connection theory of entitlement. The Veteran has alleged that his allergic rhinitis is secondary to his service-connected asthma under the provisions of 38 C.F.R. § 3.310. See March 2020 VA Form 9. He has submitted an internet article suggesting that the two conditions are related, as they are both inflammatory conditions and share similar treatment approaches. See April 2019 submission. As the Veteran has a current disability and the record contains evidence indicating that the Veteran’s allergic rhinitis could potentially be associated with his service-connected asthma, VA’s duty to obtain a medical opinion addressing the principles of secondary service connection has been triggered. 38 C.F.R. § 3.159(c)(4). Accordingly, the claim shall be remanded for this additional evidentiary development. 3. Entitlement to service connection for a skin disability, to include eczema, is remanded. The Veteran attended a VA skin examination in September 2016. The VA examiner noted the Veteran’s in-service diagnosis of tumor/neoplasm affecting the skin. The Veteran reported a history of a rash eruption on his anterior neck and right antecubital area during hot weather. He reported periodic flares of the condition triggered by heat and or perfumed soap/lotion. The condition responded to hydrocortisone cream. Physical examination did not reveal eczema or any forms of dermatitis. The Veteran attended VA skin examinations in January 2018 and March 2019, both of which primarily focused on his reports of an ingrown toenail. There was no evidence from these VA examinations establishing that the Veteran was diagnosed with eczema or any other forms of dermatitis. Despite the above VA examination findings, the Veteran has reported that he experiences a periodic skin rash. The Veteran is competent to report symptoms capable of lay observation, and his statements are credible, as he has similarly reported such symptoms to his treatment providers. For instance, VA treatment records from September 2017 document a telephone call from the Veteran where he reported a skin rash on the right side of his chest. VA treatment records from October 2018 indicate that the Veteran’s primary care physician prescribed a topical medication based on the Veteran’s reports of a skin rash/eczema. These records state that the Veteran’s rash spread to the upper extremities, chest, and neck. The Veteran’s service treatment records document a single incident of contact dermatitis in August 2015, that resolved with antipruritic and steroid medication. The Board finds that this claim must be remanded for a VA examination and medical opinion addressing whether the Veteran has a clinically significant diagnosis of a skin disability, to include eczema, and if so, whether this disability is etiologically related to the acute skin rash he experienced during his active duty service. 38 C.F.R. § 3.159(c)(4). To the extent possible, this VA examination should be conducted during an episode of the Veteran’s skin rash. Ardison v. Brown, 6 Vet. App. 405 (1994). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate VA examiner addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current allergic rhinitis is proximately due to, the result of, or aggravated by the Veteran’s service-connected asthma. The VA examiner is requested to address the internet article indicating that allergic rhinitis and asthma are both inflammatory conditions with similar treatment approaches. The VA examiner is reminded of the precedential decision by the United States Court of Appeal for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. 2. Schedule the Veteran for a VA skin examination. To the extent possible, this VA examination should be conducted when the Veteran’s periodic skin rash is present. Following an in-person assessment and review of the electronic claims file, the VA examiner is requested to address the following inquiries: (a.) Based on the examination results and the Veteran’s lay reports of his condition, explain whether the Veteran has experienced a clinically significant skin disability within the appellate period, to include contact dermatitis and/or eczema. (b.) If so, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current skin disability was incurred in or is otherwise etiologically related to his active duty service, to include the acute episode of contact dermatitis in August 2015? 3. The RO is requested to ensure that all medical opinions issued by the VA examiners are accompanied by complete rationales based on each examiner’s clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. [Continued on Next Page] 4. Thereafter, assign an initial rating for the Veteran’s service-connected costochondritis for the newly awarded period from July 22, 2016 to April 18, 2017 and then readjudicate the increased rating claim for the Veteran’s service-connected costochondritis, as well as the claims seeking entitlement to service connection for allergies and a skin disability. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.