Citation Nr: 21023353 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-36 684 DATE: April 20, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to a 60 percent initial disability rating for dermatitis is granted. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for loss of balance, to include as secondary to service-connected glaucoma with resulting peripheral vision loss, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for his claimed respiratory disability. 2. For the entire period on appeal, 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 have been required to treat the Veteran’s dermatitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to a 60 percent disability rating for dermatitis for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1963 to September 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the case for further development in February 2020. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a September 2020 rating decision, the RO increased the rating evaluation of the Veteran’s dermatitis from 10 percent to 30 percent, effective July 1, 2020. As this award did not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board. See AB v. Brown, Vet. 6 App. 35 (1993). In the September 2020 rating decision, the RO also granted service connection for glaucoma with resulting peripheral vision loss with an evaluation of 30 percent, effective April 29, 2015, and service connection for cataracts with an evaluation of 0 percent, effective April 29, 2015. Consequently, these issues are no longer on appeal and will not be addressed further by the Board. Id. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a respiratory disability The Veteran contends that a cough he has been experiencing is related to his military service, specifically exposure to x-ray radiation, mercury, and asbestos while working at the dental clinic while in-service. Service treatment records are silent for complaints of or treatment for a cough or any other respiratory condition. The Veteran was afforded a VA respiratory conditions examination in September 2020. The VA examiner found no diagnosis of any respiratory conditions. The Veteran denied chronic obstructive pulmonary disease (COPD), asthma, and pulmonary fibrosis. The Veteran reported experiencing shortness of breath (SOB) and dyspnea on exertion (DOE) with long walks. The examiner noted that the Veteran had a triple coronary artery bypass graft (CABG) surgery and ten stent placements. The examiner stated that the Veteran had not been treated with inhalers or steroids. The examiner reported that the Veteran’s medical records from Beaumont Hospital listed acute respiratory failure, but found that it appeared to be cardiac in nature and noted that in 2016 the Veteran’s congested heart failure caused a pulmonary edema. The examiner opined that the Veteran’s claimed respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that there was no diagnosis of asthma, COPD, or pulmonary fibrosis. She explained that it appears that the respiratory failure the Veteran experienced in 2016 was acute and was due to the Veteran’s heart attack and acute congestive heart failure. The examiner stated that the Veteran’s respiratory issues resolved with no pulmonary issues. The examiner noted that upon examination the Veteran’s pulse-ox was 99 percent, his respiration rate was normal, and his lung CT angiography (CTA) did not provide a diagnosis, therefore no diagnosis was made. Post-service treatment records show that the Veteran complained of and was hospitalized for treatment for difficulty breathing, dyspnea, and a cough in January 2016. See Medical Treatment Record – Non-Government Facility, received September 2016. Workup conducted at the hospital revealed cardiomyopathy or congestive heart failure. While in the hospital the Veteran underwent an off-pump coronary artery triple bypass grafting. After being transferred from the hospital to inpatient rehabilitation in February 2016, the Veteran denied chest pain, dyspnea, shortness of breath, cough, and wheezing. He continued to deny these symptoms throughout his stay in inpatient rehabilitation and thereafter. Based on the evidence of record, the Board finds that the Veteran has not established that there is a current disability for which service connection can be established. In the absence of proof of a current disability there can be no valid claim. Boyer v. West, 210 F. 3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 2. Entitlement to a 60 percent disability rating The Veteran’s dermatitis is rated under the General Rating Formula for the Skin. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the General Rating Formula, a 10 percent rating is warranted for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; at least 5 percent, but less than 20 percent, of exposed areas affected; or 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. A 30 percent rating is warranted for at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or 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. A 60 percent rating is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, PUVA, or other immunosuppressive drugs required over the past 12-month period. In this case, VA received the Veteran’s intent to file a claim for dermatitis on April 29, 2015. During the pendency of the appeal, in a May 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for dermatitis with an evaluation of 10 percent, effective April 29, 2015, under 38 C.F.R. § 4.118, Diagnostic Code 7806. Following the September 2020 Board remand, the AOJ increased the disability rating of the Veteran’s dermatitis from 10 percent to 30 percent, effective July 1, 2020. A dermatology consult note dated July 2015 reported that the Veteran had erythematous plaque with excoriation on his left anterior thigh and faint erythematous papules on his left upper arms. See CAPRI, received June 2016. It further noted that the Veteran continued to use Triamcinolone (a corticosteroid) lotion for flares, which evidence of record indicates was first prescribed in April 2015. The Veteran was afforded a VA skin conditions examination in November 2015. The examination report noted that the Veteran had been treated with topical corticosteroids for six weeks or more, but not constant in the past 12 months for his dermatitis. Upon examination, the examiner estimated that the Veteran’s dermatitis affected approximately 5 to 20 percent of his total body area and approximately 0 percent of the Veteran’s exposed areas. A dermatology note dated January 27, 2017 noted that Veteran continued to use Triamcinolone cream to treat the dermatitis on his lateral thighs. See CAPRI, received February 2020. A dermatology note dated March 24, 2017 noted that the Veteran was seen for scaly xerotic patches on his bilateral anterolateral thighs and arms. Id. The Veteran reported that although he had been applying Triamcinolone since his last visit, it was not helping. He was prescribed a different corticosteroid, Clobetasol, to treat his dermatitis. At a dermatitis follow-up appointment in September 2017, the Veteran reported that he used Clobetasol for newer areas of dermatitis and that once the affected area flattened, he started using Triamcinolone. Id. Dermatology notes dated September 2018 and January 2019 noted that the Veteran continued using Triamcinolone to treat his dermatitis. Id. The Veteran was afforded another VA skin conditions examination in July 2020. The examination report noted that the Veteran had been treated with topical corticosteroids for six weeks or more, but not constant in the past 12 months for his dermatitis. Upon examination, the examiner estimated that the Veteran’s dermatitis affected approximately 20 to 40 percent of his total body area and approximately 0 percent of the Veteran’s exposed areas. The Board has thoroughly reviewed the VA examination reports referenced above, in addition to all of the Veteran’s VA and private medical records and the lay evidence of record. Based on the totality of evidence, the Board finds that a 60 percent rating for dermatitis is warranted for the entire period on appeal as the Veteran’s dermatitis has been treated with constant or near-constant corticosteroids required since April 2015. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. 2. Entitlement to service connection for diabetes mellitus is remanded. Pursuant to the February 2020 Board remand, the Veteran was afforded VA examinations in July 2020 to determine the nature and etiology of his heart disability and diabetes mellitus. Although the Veteran was afforded separate examinations for these two conditions, the examiner opined on the conditions together. The examiner opined that the Veteran’s heart condition and diabetes mellitus were less likely incurred in or caused by the claimed in-service exposure to asbestos, mercury, and/or radiation. The examiner first noted there were no military records that indicated that the Veteran had a heart condition or contributing factors such as hypertension or diabetes. She further noted that the Veteran’s father’s death was caused by a heart condition. She then stated that there was no evidence or studies to support asbestos or mercury as an etiology for diabetes or heart disease; however, there were several studies that delve into radiation and its complications. She reported that according to the American Heart Association “prolonged exposure to low-dose radiation—like the type emitted by X-ray machines and CT scanners—can increase the risk of developing high blood pressure, a key contributor to heart disease and stroke.” She explained that it is accepted in the medical community that radiation therapy induced in cancer treatment can cause problems in the heart and vascular system. She stated that this effect is called cardiotoxicity and can develop within days or months after radiation but often develops years later; however, radiation dose measured in Grays and a hard dose of more than 30 to 35 Grays (Gy) increases the risk of cardiotoxicity. She explained that radiation therapy to the chest can also cause premature coronary artery disease atherosclerosis usually developed 10 to 15 years after radiation therapy; however, an x-ray for dentistry emits between approximately 1.009 to 0.014 Gy of radiation for the patient and there is no evidence that an x-ray technician has the same amount of exposure as the patient. Based on this information, the examiner concluded that there was no evidence that the Veteran’s x-ray radiation exposure was high enough to qualify for cardiotoxicity. The Board finds the September 2020 to be inadequate because the examiner did not address the treatise evidence the Veteran submitted that suggested causal connections between his claimed in-service harmful exposures and his claimed heart disability and diabetes mellitus. The examiner noted that there was no evidence of record that supported that heart disease and diabetes were related to exposure to asbestos and/or mercury; however, said relation is noted in the treatise evidence supplied by the Veteran. Accordingly, on remand the Veteran should be afforded an addendum opinion to determine whether his heart disability and diabetes are related to his claimed in-service exposure to radiation, mercury, and/or asbestos. 3. Entitlement to service connection for loss of balance is remanded. Pursuant to the February 2020 Board remand, the Veteran was afforded a VA examination in July 2020 to determine the nature and etiology of his loss of balance. The examiner opined that the Veteran’s loss of balance was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that upon examination she was unable to diagnose the Veteran with any condition that accounted for his claimed loss of balance. She noted that the Veteran had hearing loss, but opined that his loss of balance might actually be from his status post stroke (cerebrovascular accident/CVA). She noted that his right eye drooped in comparison to his left eye. She explained that the examination could not demonstrate a definitive diagnosis for Veteran’s loss of balance due to vestibular and ear condition. The Board finds the July 2020 opinion to be inadequate. Although the July 2020 VA ear conditions examination ruled out any vestibular or ear condition that could be the cause of the Veteran’s loss of balance, the examiner did not address whether the Veteran’s loss of balance could instead be related to his vision problems, specifically his glaucoma with resulting peripheral vision loss, which was not service-connected at the time of the July 2020 opinion but has since been service-connected. In a separate July 2020 opinion provided by a different VA examiner for glaucoma with resulting peripheral vision loss, the examiner explained that while in-service the Veteran was exposed to chemicals that lead to stroke and that strokes can cause peripheral vision loss. Additionally, the July 2020 examiner did not address the treatise evidence the Veteran submitted that suggested causal connections between his claimed in-service harmful exposures and his claimed loss of balance. Accordingly, on remand the Veteran should be afforded an addendum opinion to determine whether his loss of balance is related to his peripheral vision loss. The matters are REMANDED for the following action: 1. Forward a copy of the remand to a qualified clinician to obtain addendum opinions concerning the Veteran’s heart, diabetes mellitus, and loss of balance disabilities. All pertinent evidence of record, including the September 2020 Board remand and the treatise evidence the Veteran submitted that suggested causal connections between his claimed in-service harmful exposures and his claimed heart, diabetes mellitus, and loss of balance disabilities, must be made available to and reviewed by the examiner. If the examiner determines that another in-person examination is required to provide the below requested information, then such an examination should be scheduled. After reviewing the evidence of record, the examiner is asked to provide the following opinions: (a.) Is it as likely as not (50 percent or greater probability) that the Veteran’s heart disability is related to an in-service injury, event, or disease, including the claimed in-service exposure to radiation, mercury, and/or asbestos? (b.) Is it as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus is related to an in-service injury, event, or disease, including the claimed in-service exposure to radiation, mercury, and/or asbestos? (c.) Is it as likely as not (50 percent or greater probability) that the Veteran’s loss of balance is related to an in-service injury, event, or disease, including the claimed in-service exposure to radiation, mercury, and/or asbestos? (d.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s loss of balance was proximately due to his service-connected glaucoma with resulting peripheral vision loss? (e.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s loss of balance was aggravated (worsened beyond natural progression) by his service-connected glaucoma with resulting peripheral vision loss? In providing these opinions, the examiner is asked to address the treatise evidence the Veteran submitted that suggested causal connections between his claimed in-service harmful exposures and his claimed heart, diabetes mellitus, and loss of balance disabilities. The examiner is advised that a finding that the disability is aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The examiner is encouraged to cite to medical/scientific information to support his or her opinion as appropriate. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If a VA examination proves not feasible for any reason, including the Veteran not appearing for an examination, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.