Citation Nr: 21025789
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 15-27 054A
DATE: April 29, 2021

ORDER

Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), prior to January 17, 2019, is denied.

Entitlement to a rating in excess of 70 percent for service-connected PTSD from January 17, 2019 is granted.

Entitlement to an initial compensable rating for service-connected bilateral plantar fasciitis with spurs is denied.

Entitlement to an initial compensable rating for service-connected eczema and pseudofolliculitis barbae, prior to February 6, 2019, is denied.

Entitlement to a rating in excess of 30 percent for service-connected eczema and pseudofolliculitis barbae from February 6, 2019 is denied.

Entitlement to service connection for depression is denied.

Entitlement to service connection for a disability manifested by memory loss is denied.

Entitlement to service connection for a disability manifested by stress is denied.

Entitlement to service connection for alcohol abuse is denied.

Entitlement to service connection for chronic fatigue syndrome (CFS), to include fatigue and tiredness, is denied.

Entitlement to service connection for a dental condition for compensation purposes, claimed as periodontal gum disease, is denied.

Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for right wrist ganglion cyst is denied.

Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for right fifth finger trigger finger is denied.

Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for hypertension is denied.

Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for erectile dysfunction is denied.

REMANDED

Entitlement to an initial rating in excess of 10 percent for service-connected lumbar spine degenerative joint disease (DJD) and strain is remanded.

Entitlement to a rating in excess of 20 percent for service-connected lumbar spine DJD and strain from February 6, 2019 is remanded.

Entitlement to an initial rating in excess of 20 percent for service-connected cervical spine DJD is remanded.

Entitlement to an initial rating in excess of 50 percent for service-connected obstructive sleep apnea (OSA) with chronic obstructive pulmonary disease (COPD) is remanded.

Entitlement to service connection for peripheral neuropathy, left upper extremity is remanded.

Entitlement to service connection for gulf war illness or an undiagnosed illness due to service in Southwest Asia is remanded.

Entitlement to service connection for bilateral testicular pain is remanded.

Entitlement to an increased rate of special monthly compensation (SMC) is remanded.

FINDINGS OF FACT

1. Prior to January 17, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity.

2. From January 17, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas.

3. Throughout the appeal period, the lay and medical evidence reflects that the Veteran’s service-connected bilateral plantar fasciitis more nearly approximated a moderate foot disability manifested by bilateral foot pain that is relieved, albeit only partially, by non-surgical treatment.

4. Prior to February 6, 2019, service-connected eczema and pseudofolliculitis barbae was manifest by no more than one characteristic of disfigurement.

5. Since February 6, 2019, service-connected eczema and pseudofolliculitis barbae is manifest by no more than three characteristics of disfigurement.

6. The most competent, credible, and probative evidence of record reflects that the Veteran’s current depression does not represent a primary disability that is separate and distinct from other diagnosed disabilities but, instead, is part and parcel of his service-connected PTSD.

7. The most competent, credible, and probative evidence of record reflects that the Veteran’s current memory loss does not represent a primary disability that is separate and distinct from other diagnosed disabilities but, instead, is part and parcel of his service-connected PTSD.

8. The most competent, credible, and probative evidence of record reflects that the Veteran’s current stress does not represent a primary disability that is separate and distinct from other diagnosed disabilities but, instead, is part and parcel of his service-connected PTSD.

9. The Veteran does not currently have a clinically diagnosed alcohol related disability and his reported problems with alcohol are not shown to result in functional impairment affecting earning capacity.

10. The preponderance of the evidence weighs against a finding that the Veteran has a current diagnosis of CFS or that his symptoms of fatigue and tiredness are separate and distinct from his service-connected OSA or PTSD disabilities and represent an undiagnosed illness or a medically unexplained chronic multi-symptom illness.

11. The evidence of record does not establish that the Veteran’s missing teeth are due to service trauma or a disease other than periodontal disease or that he has any of the dental or oral conditions listed under 38 C.F.R. § 4.150.

12. Entitlement to service connection for right wrist ganglion cyst is effective from February 1, 2012, the day the Veteran separated from active service. 

13. Entitlement to service connection for right fifth finger trigger finger is effective from February 1, 2012, the day the Veteran separated from active service. 

14. Entitlement to service connection for hypertension is effective from February 1, 2012, the day the Veteran separated from active service.

15. Entitlement to service connection for erectile dysfunction is effective from February 1, 2012, the day the Veteran separated from active service. 

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), prior to January 17, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for a rating in excess of 70 percent for service-connected PTSD from January 17, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.130, DC 9411.

3. The criteria for an initial 10 percent rating, but no higher, for service-connected bilateral plantar fasciitis with spurs have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5284, 5269.

4. The criteria for an initial 10 percent rating, but no higher, for service-connected eczema and pseudofolliculitis barbae have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, Diagnostic Code DC 7800-7806.

5. From February 6, 2019, the criteria for a rating in excess of 30 percent for service-connected eczema and pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.118, DC 7800-7806.

6. The criteria for service connection for depression as a primary and separately manifested disability are not met. 38 U.S.C. § 1110, 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

7. The criteria for service connection for memory loss as a primary and separately manifested disability are not met. 38 U.S.C. § 1110, 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

8. The criteria for service connection for stress as a primary and separately manifested disability are not met. 38 U.S.C. § 1110, 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

9. The criteria for service connection for alcohol abuse or an alcohol related disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

10. The criteria for service connection for CFS, to include fatigue and tiredness, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

11. The criteria for service connection for a dental condition for compensation purposes, claimed as periodontal gum disease, have not been met. 38 U.S.C. §§ 1131, 1712; 38 C.F.R. §§ 3.303, 3.304, 4.150, 17.161.

12. The criteria for an effective date earlier than February 1, 2012 for the grant of service connection for right wrist ganglion cyst have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

13. The criteria for an effective date earlier than February 1, 2012 for the grant of service connection for right fifth finger trigger finger have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

14. The criteria for an effective date earlier than February 1, 2012 for the grant of service connection for hypertension have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

15. The criteria for an effective date earlier than February 1, 2012 for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1988 to February 2012.

The issues on appeal were previously before the Board in November 2018 and October 2020, at which time the Board requested additional evidentiary development. All requested development has been conducted with respect to the issues adjudicated in this decision; however, additional development is needed with respect to the issues remanded herein, as will be further explained below. 

Increased Rating

1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to January 17, 2019

2. Entitlement to a rating in excess of 70 percent for service-connected PTSD from January 17, 2019

In the August 2012 rating decision on appeal, the AOJ granted service connection for PTSD and assigned an initial 50 percent rating, effective February 1, 2012. The Veteran perfected an appeal as to the rating assigned to his disability and, during the pendency of the claim, the AOJ awarded an increased, 70 percent rating, effective January 17, 2019. See September 2020 rating decision. The Veteran was notified of the AOJ’s determination, but he did not withdraw his appeal. Therefore, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993).

Accordingly, the Board will consider whether the Veteran’s service-connected PTSD warrants an initial rating in excess of 50 percent prior to January 17, 2019, and a rating in excess of 70 percent thereafter. 

At this juncture, the Board notes that, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes pertaining to the mental disorders were not changed. 

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The evidence reflects that, as early as January 2013, the Veteran demonstrated good hygiene and verbal communication skills with motivation to find employment. At that time, the Veteran reported that his wife was his support system and, while he denied participating in social organizations, he reported having a number of leisure activities, such as fishing, yard work, and working on his truck. See January 2013 vocational rehabilitation initial assessment. Nevertheless, the evidence shows the Veteran has consistently reported experiencing depression and nightmares throughout the appeal period and been prescribed medication; however, he has consistently declined receiving continuous mental health treatment. See e.g., VA treatment records dated May 2013 and May 2015. 

During the November 2013 VA examination, the Veteran’s PTSD symptoms included chronic sleep impairment, mild memory loss, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran reported being married for 24 years and described the relationship with his wife and son as fairly good. He also reported having three close friends, one of which he saw every two weeks, and he reported having casual social contacts at school. In this regard, the Veteran stated that he was enrolled full time at a community college and had also been working part time at the post office for one and a half years. While the Veteran denied missing time from work and school due to mental health issues, he reported having some problems with concentration at school and work, as well as problems being irritable at work, although he stated that he was usually able to manage it. Indeed, the Veteran stated that he generally tried to manage his irritability and withdrawal. He also reported a number of leisure activities, such as fishing two times a week, cooking, yard work, working on cars, and eating out with his wife once a week. 

The evidence shows the Veteran sought VA outpatient mental health treatment in July 2017, at which time he endorsed having problems with anger primarily at home and problems with his marriage due to trust issues. He stated that his relationships with his parents and sisters was “fine” and “ok,” although he reported having little contact with them. He also reported isolating and stated that he had a short trigger with episodes of inability to control his anger and periods of anxiety. The Veteran stated that he was unable to explain why he no longer enjoyed activities that he previously enjoyed, such as grilling, and he also stated that he did not see his one or two friends often. He continued to report having difficulty sleeping with occasional dreams and nightmares, and he also endorsed hypervigilance, anhedonia, occasional flashbacks, intrusive memories, exaggerated startle response, and recurrent depression. Nevertheless, mental status evaluation revealed the Veteran was neat and clean with appropriate mood but anxious affect. The Veteran’s orientation was intact, and he had good concentration and memory. In August 2017, he reported engaging in enjoyable activities but, in July 2018, he stated that he no longer did and reported going off by himself and avoiding many people. At that time, however, he reported having very few anxiety episodes and no anger issues. 

During the January 2019 VA examination, the Veteran continued to endorse having a chronic sleep impairment with persistent nightmares and insomnia, which he stated contributed to his daytime fatigue and decreased energy. He also described disturbances in motivation and mood which resulted in difficulty establishing effective relationships. In this regard, he endorsed having depressed mood and anxiety with a feeling a sense of estrangement from his wife and son due to his chronic irritable mood and poor frustration tolerance in their presence. He reported being withdrawn from his family most times with minimal interactions with friends and no involvement in community activities. The Veteran was noted to be a mechanic and reported a preference working with machines versus interacting with people. He also described an accomodation at work that allowed him to work without much interaction with others. Nevertheless, he denied missing multiple days at work or having negative interactions with others. However, he endorsed experiencing suspiciousness and distrust of others with concentration disturbances, poor stress tolerance, and difficulty adapting to stressful circumstances. He also reported hypervigilance and mild memory loss. While he denied suicidal or homicidal ideation at the time of the examination, he reported having fleeting suicidal ideation six months prior to the examination in response to family stressors. 

After reviewing the foregoing evidence, as well as the lay evidence submitted in support of this claim, the Board finds that the Veteran’s symptoms more nearly approximated the symptoms and level of impairment for no higher than an initial 50 percent rating prior to January 17, 2019, and no higher than a 70 percent rating on and after that date. 

At the outset, the Board notes that the preponderance of the evidence shows the Veteran has been fully oriented without any problems maintaining his hygiene or difficulty communicating throughout the appeal period. His insight and judgement have also been consistently described as good and intact. 

Nevertheless, as shown above, the evidence dated prior to January 2019 reflects that the Veteran has experienced many symptoms that are associated with a 30 percent rating, including depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The evidence also shows he has experienced additional symptoms that are not listed with a specific rating, such as hypervigilance, anhedonia, occasional flashbacks, intrusive memories, exaggerated startle response, and problems with concentration at school and work.

However, the evidence shows that the combined effect of the Veteran’s symptoms resulted in and approximated the functional impairment contemplated by the 50 percent rating, as he experienced fluctuations and disturbances in motivation in mood and difficulty establishing effective relationships with others due to his various symptoms, including specifically, depression, anxiety, and insomnia with  resulting decreased energy. Indeed, while the evidence dated prior to January 2019 shows he maintained fair relationships with his family and friends, he also reported occasions where he isolated himself and experienced anhedonia and periods of anger and anxiety. In this regard, the evidence dated prior to January 2019 shows the Veteran generally tried to manage his irritability and withdrawal and reported participating in a number of leisure activities; however, it appears that the fluctuations in his mood impacted his interpersonal relationship and resulted in reduced reliability and productivity at home and work, which is consistent with a 50 percent rating.

The Board finds that the evidence dated from January 2019 reflects more severe symptoms that resulted in deficiencies in many areas of the Veteran’s life, including work, interpersonal relations, thinking, and mood. In this regard, the relevant evidence shows the Veteran newly reported being feeling estranged from his wife and being withdrawn from his family most times with minimal interactions with friends, no involvement in community or leisure activities, and a preference working without interacting with others. He also newly reported having chronically irritable mood, as opposed to intermittent periods of irritability and anger shown prior to January 2019, as well as fleeting suicidal ideation. Notably, these more severe symptoms and overall impairment in social and occupational functioning are not reflected in the evidence dated prior to January 2019. 

The Board also notes that, while the evidence dated from January 2019 reflects severe symptoms and impairment in work, interpersonal relations, thinking, and mood, the evidence does not reflect that the Veteran exhibited a total impairment in functioning after he experienced increased, more severe symptoms in January 2019. Indeed, the Veteran is not shown to have a gross impairment in thought process or communication, persistent danger of hurting himself or others, persistent delusions or hallucinations, grossly inappropriate behavior, inability to perform activities of daily living, disorientation to time or place, or memory loss for relative’s names or his name. 

In this context, the Board notes that the Veteran’s documented memory loss is contemplated by the 30 percent, 50 percent, and 100 percent ratings; however, the preponderance of the evidence describes his memory loss as no more than mild and manifested by forgetting events or other things if he does not write them down. See e.g., March 2018 lay statements from his wife and co-worker. The Board also finds probative that the Veteran’s memory is consistently described intact and good in the VA treatment records and there is no indication that he forgets the names of close relatives, his occupation, or his own name, as contemplated by the 100 percent rating. See e.g., VA treatment records dated May 2015, July 2017, and June 2018. Therefore, the Board finds the Veteran’s memory loss is no more than mild throughout the appeal period.

The Board also acknowledges that the Veteran’s fleeting suicidal ideation is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s reported suicidal ideation is not shown to have risen to the level of functional impairment contemplated by the 100 percent disability rating on or after January 2019, as the Veteran reported that his suicidal ideation was fleeting and resolved after talking to a therapist and he is not shown to have endorsed experiencing suicidal ideation at any other time during the appeal period. 

Therefore, the Board concludes the preponderance of the evidence does not reflect that the Veteran manifested symptoms or functional impairment that more nearly approximated a total impairment to warrant a higher, 100 percent rating at any time prior to or after January 2019.

In evaluating this claim, the Board has considered the lay and medical evidence of record and, for the reasons explained above, finds the preponderance of the evidence weighs against the grant of an initial rating in excess of 50 percent rating prior to January 17, 2019, and a rating in excess of 70 percent rating on or after that date. As a result, the benefit-of-the-doubt doctrine is not applicable, and the Veteran’s increased rating claim is denied. 

3. Entitlement to an initial compensable rating for service-connected bilateral plantar fasciitis with spurs

The Veteran contends that his service-connected plantar fasciitis disability should be assigned a higher rating. He specifically requested a 10 percent rating and has reported receiving injections in the bottom of his feet to relieve the pain he experiences. See August 2015 VA Form 9. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, bilateral plantar fasciitis was not listed in the rating criteria and was commonly rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries. Indeed, the Veteran’s bilateral plantar fasciitis was initially evaluated under DC 5284. See August 2012 rating decision. Under DC 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284.

The Board notes that, according to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”.  See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”.  See www.merriam-webster.com/dictionary/severe.

The Board further notes that the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

As of February 7, 2021, the amended criteria assigned a new diagnostic code for plantar fasciitis, DC 5269, which provides that a 30 percent rating for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A 20 percent rating is assigned for unilateral plantar fasciitis with no relief from non-surgical and surgical treatment. A 10 percent rating is otherwise assigned for unilateral or bilateral plantar fasciitis. Note (1) to DC 52369 provides that a 40 percent rating is assigned with actual loss of use of the foot. Note (2) states that, if a veteran has been recommended for surgical intervention but is not a surgical candidate, the disability is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. 

The relevant evidence of record includes VA foot examinations conducted in  November 2011 and February 2019, in addition to the lay statements submitted in support of this claim. The Board acknowledges that the claims file includes VA treatment records dated from 2012 to 2020 which generally note the Veteran’s residuals of foot injury; however, the treatment records do not document any complaints of foot pain or other symptoms associated with plantar fasciitis or document any treatment for the service-connected bilateral plantar fasciitis disability. Therefore, the treatment records will not be discussed any further in this decision.

During the November 2011 VA examination, the examiner noted the Veteran’s diagnosis of plantar fasciitis and an incidental finding for a remote fracture in the first right metatarsal while evaluating the heel spur. The examiner noted the Veteran’s occasional use of over-the-counter inserts with poor response, as well as the Veteran’s report of flare-ups of pain with walking ¼ of a mile without any specific effect on standing. 

During the February 2019 VA Foot examination, the Veteran reported that his feet constantly hurt during service, for which he received a cortisone shot during service. He specifically endorsed having pain over the medial aspect of the first right metatarsophalangeal (MTP) joint and over the heels of the left and right foot. He rated his foot pain as a four out of ten and stated that he only experiences bilateral foot pain while walking, which increases with the more walking he does. The Veteran also reported that he occasionally limps, which was noted as a flare-up of the service-connected condition, but he but denied using any assistive devices. In this regard, the Veteran reported using over-the-counter shoe inserts to alleviate his pain. The examiner noted there was no pain on physical examination of the left or right foot, again noting the Veteran’s report of only experiencing pain while walking especially in his steel-toe work boots. The examiner also noted the Veteran does not experience functional loss in either foot as a result of the service-connected plantar fasciitis disability but noted that walking results in pain over the ventral aspect of the first right MTP joint and both heels. The examiner further noted that x-rays of both feet revealed mild degenerative changes of the MTP joints in both great toes and the talonavicular joint of each foot, which was noted to be unchanged from the previous examination.

After evaluating the foregoing evidence, the Board finds the preponderance of the evidence shows the Veteran’s service-connected bilateral plantar fasciitis disability is manifest by pain in his feet which is shown to increase with walking ¼ of a mile and result in an occasional limp. The evidence also shows the Veteran has used over-the-counter inserts with poor response, as he has continued to experience bilateral foot pain particularly with walking. Notably, during the February 2019 examination, the Veteran reported that his pain only occurs while walking and increased with the more walking he does. See also November 2012 lay statement from V.R. 

In applying this evidence to the applicable rating criteria and after resolving reasonable doubt in favor of the Veteran, the Board finds a 10 percent rating is warranted for the service-connected bilateral plantar fasciitis disability throughout the appeal period. 

In making this determination, the Board notes that, for the period prior to February 7, 2021 – when the Veteran’s disability is rated by analogy under DC 5284 - the evidence suggests or, at a minimum, raises doubt as to whether his service-connected disability more nearly approximated a moderate foot disability under the criteria of DC 5284 and 38 C.F.R. § 4.59, as a result of his bilateral foot pain, i.e., actually painful feet, and the resulting functional impairment of increased pain while walking. 

A rating higher than 10 percent is not warranted under DC 5284, however, as the lay and medical evidence of record does not indicate or suggest that the Veteran’s bilateral foot disability was manifest by severe symptoms or resulted in a severe functional impairment. Indeed, the evidence shows the Veteran has described his foot pain as a four out of ten and, while the Veteran’s bilateral foot pain is shown to flare-up throughout the appeal, limit the Veteran’s walking, and result in an occasional limp, the Board finds probative that the evidence shows the Veteran’s pain occurs only with weight-bearing and increases depending on the amount of walking he performs, as opposed to being constant, noticeable with non-weight-bearing activities, or prevent walking or walking.

For the period from February 7, 2021, the Board finds that the new criteria under DC 5269 is more favorable to the Veteran than rating his disability by analogy to DC 5284. In fact, the law states that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). However, even when applying the criteria of DC 5269 from February 7, 2021, the Board finds no higher than a 10 percent rating is warranted, as the evidence shows the Veteran has received relief, albeit minimal, from the non-surgical treatment he has received, i.e., his use of over-the-counter shoe inserts. In this regard, the Board finds probative that the evidence describes his response to the use of shoe inserts as “poor,” as opposed to “none,” and the Veteran subsequently reported using over-the-counter inserts to alleviate his pain. See VA examinations dated November 2011 and February 2019. The Board also notes the Veteran reported never having tried or used custom inserts, which the February 2019 VA examiner encouraged him to try. Therefore, the lay and medical evidence of record shows the Veteran’s service-connected bilateral plantar fasciitis disability is consistent with disability, i.e., bilateral plantar fasciitis, contemplated by the 10 percent rating under DC 5269.

In evaluating this claim, the Board has considered the other Diagnostic Codes pertaining to the foot. However, for the period when the service-connected disability is rated by analogy under DC 5284 prior to February 7, 2021, the lay and medical evidence of record does not reflect that the Veteran’s bilateral plantar fasciitis disability is manifested by weak foot, claw foot, metatarsalia, hallux valgus, hallux rigidus, or hammertoes. Therefore, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, and 5283 are not relevant to this case and are not applicable. 

The Board again notes that disabilities listed in the rating schedule may only be rated under the diagnostic code that specifically pertains to them and, thus, for the period beginning February 7, 2021, the Board is unable to evaluate the service-connected bilateral plantar fasciitis under any other DCs pertaining to the foot. Additionally, the Board notes the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.  

In conclusion, the Board finds that the preponderance of the evidence supports the grant of an initial 10 percent rating for service-connected bilateral plantar fasciitis throughout the appeal period; however, the preponderance of the evidence is against the grant of a rating in excess of 10 percent at any point during the appeal period. As such, the Board finds the benefit of the doubt doctrine is not applicable and the Veteran’s claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to an initial compensable rating for service-connected eczema and pseudofolliculitis barbae

5. Entitlement to a rating in excess of 30 percent for service-connected eczema and pseudofolliculitis barbae from February 6, 2019

In the August 2012 rating decision on appeal, the AOJ granted service connection for eczema and pseudofolliculitis barbae (PFB) and assigned an initial noncompensable rating, effective February 1, 2012. The Veteran perfected an appeal as to the rating assigned to his skin disability and, during the pendency of the claim, the AOJ awarded an increased, 30 percent rating, effective February 6, 2019. See September 2020 rating decision. The Veteran was notified of the AOJ’s determination, but he did not withdraw his appeal. Therefore, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993).

Accordingly, the Board will consider whether the Veteran’s service-connected eczema and PFB disability warrants an initial compensable rating prior to February 6, 2019, and a rating in excess of 30 percent thereafter. 

At this juncture, the Board again notes that, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes pertaining to the skin and scars were not changed. 

Indeed, the Veteran’s disability is currently rated under DC 7800-7806. The hyphenated diagnostic code assigned in this case represents the manifestations of his PFB, which is evaluated as scars or other disfigurement of the head, face, or neck under DC 7800, and eczema, which is evaluated under DC 7806. See 38 C.F.R. § 4.27. Nevertheless, the Board will consider whether the Veteran’s disability warrants an increased rating under all potentially applicable diagnostic codes, including DCs 7800 and 7806.

VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 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.

Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. Under that code, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118.

Note 1 to Diagnostic Code 7800 lists the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches (39 sq. cms); underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. 

Under the regulations in effect at the time the Veteran filed his claim, DC 7806 provided that a noncompensable (zero percent) rating was assignable when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected; and no more than topical therapy are required during the past 12-month period. A 10 percent rating was assignable when at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected; or when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a duration of less than six weeks during the past 12-month period. A 30 percent rating was assignable when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was assignable 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 are required during the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806.

Under the old criteria, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. See Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). The pertinent consideration is whether the treatment is administered on a large enough scale to affect the body as a whole. Id. at 1355.

Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a).

Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or 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 assigned at least one of the following: characteristic lesions involving more than 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 assigned 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, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824.

The relevant evidence of record includes VA examinations conducted throughout the appeal period, VA treatment records, and lay statements submitted in support of this claim. As an initial matter, the Board notes that, while the VA treatment records generally note the Veteran’s diagnosis of eczema, they do not document and relevant complaints or treatment for this disability except for on one occasion. In this regard, an April 2014 VA treatment record reflects the Veteran was prescribed topical steroids, topical anti-inflammatory medication, and fade creams for post inflammatory pigment alteration located on his chest. The Veteran specifically reported using Triamcinolone cream on this area as needed but stated that only discoloration remained there. See February 2019 VA skin examination. While the April 2014 VA treatment record does not contain a diagnosis of eczema and subsequent treatment records do not document continued complaint or treatment for the post inflammatory pigment alteration on his chest, the Board finds the preponderance of the evidence suggests that this condition was likely a manifestation of his eczema that occurs intermittently. 

Indeed, the Veteran has reported being diagnosed with eczema during service which he stated was variously found on his chest, hips, and lateral aspects of his buttocks and treated by steroidal ointment and creams. See February 2019 VA skin examination. While he has continued to be diagnosed with eczema throughout the appeal period, he has reported that his eczema improved with the use of creams and lotions but continued to come and go, occurred every six months, and was manifested by dry, scratchy skin. See VA skin examinations dated November 2014 and February 2019; see also November 2012 lay statement from V.R. 

Other than the April 2014 VA treatment record, objective evaluation has not revealed any lesions or findings characteristic of dermatitis, to include on the Veteran’s chest, hips, or buttocks. Indeed, he specifically denied having any current complaints or treatment for eczema during the November 2011 VA examination and the clinicians who performed the VA examinations in November 2014, May 2016, and February 2019 noted his eczema was asymptomatic, in remission, and inactive during those examinations. See VA skin examination reports dated November 2011, November 2014, May 2016, and February 2019. As a result, the medical evidence does not contain any specific information as to the percentage of the body affected by the Veteran’s eczema. At best, the objective medical evidence suggests the Veteran’s eczema has affected no more than five percent of his total body area and no exposed areas, as the April 2014 VA treatment records shows he experienced post inflammatory hyperpigmentation only his chest area at that time. In this regard, the Board notes that the chest is not generally considered an exposed area of the body. 

Nevertheless, the preponderance of the evidence shows that, when present, the Veteran’s eczema is treated with topical corticosteroids, to include Triamcinolone cream, Clotrimazole, Betamethasone cream, hydrocortisone valerate and over-the-counter hydrocortisone. See e.g., VA examination dated November 2014, May 2016 and February 2019.

As for his PFB, the Veteran reported that his PFB began during service and was treated with a shaving profile. He reported that the PFB has gotten better with the use of cream but stated that he rarely shaves and wears a beard. See e.g., VA examinations dated November 2011, November 2014, and May 2016. While objective manifestations of PFB were not found during the November 2011 and February 2019 VA examinations, the Veteran’s PFB was active during the November 2014 and May 2016 examinations and manifest by inflamed hair follicles on his neck which examiners noted involved less than five percent of his total body and exposed area and required constant to near constant use of topical medication, specifically Adapalene gel. See VA examinations dated November 2014 and May 2016. 

During the February 2019 VA skin examination, the examiner noted there were residual scars on the Veteran’s neck and under his jaw bone. With respect to the residual PFB scars, the February 2019 scars examination reflects that the Veteran had multiple slightly raised, round, mildly irregular, hyperpigmented skin lesions under his jaw and over his neck which measured 0.2 to 0.3 cm in diameter in an area spread out over 12 cm long and 4.5 cm wide or an approximate total area of 54 square cms. The examiner noted that the residual scars were not painful, unstable, or due to burns but were, instead, consistent with mild residual scarring from previous PFB and described as quiescent without any resulting limitation of function or additional associated findings.  

As requested in the November 2018 Board remand, the February 2019 VA examiner discussed the various medications prescribed for the Veteran’s service-connected eczema and PFB, to include whether the medications treated the Veteran’s body as a whole or were otherwise like a corticosteroid or immunosuppressive drug. 

The VA examiner noted that, in general, the topical route of administration refers to local application of medications and to sites on the skin where therapeutic effects are needed. He noted that topical glucocorticoid medications (such as hydrocortisone and Triamcinolone) are prescribed for the treatment of skin conditions like dermatitis, eczema, rash, itching, and psoriasis, and do not operate by affecting the body as a whole or, in other words, do not deliver a dose of medication to the blood stream for distribution throughout the body for treatment. He stated that topical glucocorticoid medications differ from other medications that can be applied to the skin and absorbed into the blood stream for while body therapeutic effect. These “transdermal medications” are often administered in occlusive patches allowing a steady amount of medication to be absorbed over a prolonged period of time. He also noted that other “systemic medications” can be delivered orally, intramuscularly, intravenously, subcutaneously, and intrathecally, while further noting that systemic medications can be used to treat skin conditions when those conditions are widespread and topical application is too difficult to apply over that area. 

He noted that, at times, topical glucocorticoids can have systemic effects, such as suppression of the Hypothalamus-Pituitary-Adrenal axis; however, that possibility is a function of several reported factors, including the potency of the topical glucocorticoid medication, the vehicle in which it is formulated (noting that the highest to lowest absorption was ointment, creams, gels, lotions, and spray); use of occlusive dressings after application, frequency of administration, duration of treatment, and area of application.

With respect to the corticosteroids used to treat the Veteran’s eczema, the February 2019 VA examiner noted that hydrocortisone valerate was not found in the Veteran’s medication lists in the treatment records, despite being noted by the May 2016 VA examiner. The examiner noted, however, the Veteran’s report of using over-the-counter hydrocortisone when his eczema occurred every six months. Nevertheless, the examiner stated that, regardless of the topical hydrocortisone used to treat his eczema, this medication does not operate by affecting the body as a whole. In this regard, the examiner also noted that hydrocortisone cream and ointment is a Class VII topical glucocorticoid that is among the least potent of the topical steroids. He also noted that hydrocortisone valerate ointment is a Class IV topical glucocorticoid, whereas hydrocortisone valerate cream is a Class V topical glucocorticoid. While he noted that both are of medium potency, he again stated that it is not clear if the Veteran was using the ointment or cream. 

With respect to the Triamcinolone cream prescribed for eczema in August 2009, December 2013, and February 2016, the examiner stated it is a topical medication to be applied to local skin conditions and is not a systemic medication in this vehicle of formulation.

The examiner also noted that Adapalene, which was prescribed for treatment of PFB, is not classified as a corticosteroid or immunosuppressive drug but is a topical retinoid, which is a class of medication used topically to treat acne deep in the pores and to prevent new acne from forming, reduce fine wrinkles, and improve dyspigmentation, e.g., post-inflammatory hyperpigmentation. He noted that retinoids act as comedolytic agents and work by unclogging blocked pores. He also noted that they work synergistically with topical antibodies to allow them to enter the pore and eradicate the underlying bacteria causing the acne breakout. However, the VA examiner stated that there are no records that document the Veteran’s treatment with this medication and the Veteran stated he has not used this medication for some time. He also noted that it is not clear if he used it to treat acne or his reported post-inflammatory hyperpigmentation. 

As an initial matter, the Board notes that the preponderance of the evidence shows the Veteran’s predominant disability is PFB and the residual scars he experiences as a result of his PFB. Indeed, as noted, the evidence shows the Veteran’s eczema occurs intermittently every six months and is manifested by dry, scratchy, and hyperpigmented skin that has been observed on clinical examination on only one occasion during the appeal period. By contrast, the evidence shows the Veteran’s PFB occurs more frequently, as it is shown to have been characterized by inflamed hair follicles on his neck and is also manifest by residual scarring under his jaw and neck when inactive. 

As a result, the Board finds it is more appropriate to evaluate the Veteran’s service-connected eczema and PFB under the criteria of DC 7800 which, the Board also notes, is more favorable to the Veteran. 

In this regard, the Board notes that, under both the old and new rating criteria of DC 7806, there are two criteria that can be satisfied for entitlement for each rating. The first criteria is based on the percent of the body affected. Alternatively, if the affected area is not large enough, the Veteran can receive entitlement to a rating if he or she is receiving systemic therapy of a corticosteroid or other immunosuppressive drug as treatment for the disability. In this case, however, the Board finds that the criteria of DC 7806 does not provide a basis on which to assign a compensable rating for the service-connected eczema and PFB disability at any point during the appeal period. 

First with respect to the percent of body affected, the preponderance of the evidence shows that the Veteran’s eczema and PFB have involved less than five percent of his total body and exposed area, including during its more severe episodes. See VA examinations dated November 2011, November 2014, May 2016, and February 2019.

In this regard, the Board notes that the evidence shows the Veteran’s eczema occurs every six months and has not been observed on clinical evaluation except for in April 2014 when it was shown to involve only the mid upper anterior thoracic area of his chest. While the examining clinician did not explicitly characterize the percentage of the total and exposed body area impacted by the disability, the Board finds that the mid, upper, anterior thoracic area of the Veteran’s chest does not involve any of the exposed areas of his body and is not likely more than five percent of his total body area. Similarly, the Board notes that the Veteran’s PFB is described as only affecting under his jawbone and neck when active or inactive, which is no more than five percent of his total body or exposed area. Therefore, the percentage of the body affected by the service-connected disability, i.e., less than five percent, would warrant no higher than a noncompensable (zero percent) rating under the old and new versions of DC 7806 throughout the appeal period. 

The Board also finds that no higher than a noncompensable rating would be warranted under DC 7806 based upon the type of treatment prescribed for the service-connected disability in this case. In making this determination, the Board finds that the February 2019 VA opinion is the most competent, credible, and probative evidence of record as to whether the various treatments prescribed for the Veteran’s service-connected disability were systemic or topical therapy as contemplated by the rating criteria. As shown above, the February 2019 VA examiner reviewed the claims file, identified the creams and ointments the Veteran is shown to have used for his service-connected eczema and PFB during the appeal period, and discussed the nature of the various creams and ointments. Importantly, the VA examiner provided a complete, well-reasoned explanation as to why the creams and ointments in this case are not considered systemic therapy, e.g., affected the body as a whole. The Board also notes that there is no opposing lay or medical evidence or opinion of record that addresses this information and is considered more probative.

As noted, the evidence shows the Veteran has variously used Triamcinolone cream and various types of hydrocortisone, including an over-the-counter cream and valerate ointment, to treat his eczema; however, the February 2019 VA examiner stated that Triamcinolone cream is a topical medication applied to local skin conditions that is not a systemic medication in this vehicle of formulation. He also opined that, regardless of the topical hydrocortisone used to treat the Veteran’s eczema, this medication does not operate by affecting the body as a whole. Similarly, the evidence shows the Veteran has required the use of Adapalene gel, which is not classified as a corticosteroid or immunosuppressive drug but is, instead, a topical retinoid that works synergistically with topical antibodies to allow them to enter the pores and eradicate the underlying bacteria causing an acne breakout. 

Based on the foregoing, the Board finds the preponderance of the competent, credible, and probative evidence shows the Veteran’s eczema and PFB have not required the use of systemic therapy as contemplated by the old or new criteria of DC 7806, as the various creams and medications used for his disabilities have been topical, not systemic therapy affecting the body as a whole. Therefore, a compensable rating is not warranted under DC 7806 at any point during the appeal period.  

Nevertheless, in applying the facts to the criteria of DC 7800, the Board finds the preponderance of the evidence supports the grant of an initial 10 percent rating prior to February 6, 2019, but no higher than a 30 percent rating thereafter. 

As noted, in February 2019, the Veteran’s service-connected disability was manifest by multiple slightly raised, round, mildly irregular, hyperpigmented skin lesions under his jaw and over his neck which measured 12 cm long and 4.5 cm wide or an approximate total area of 54 square cms. 

The evidence dated prior to February 2019 shows the Veteran occasionally wore a beard which prevented examiners from observing any residual scarring on his face or neck due to PFT. Nevertheless, the lay evidence indicates that his disability was manifest by scarring on his face after shaving as early as November 2012, while the medical evidence also shows his PFB was manifest by inflamed hair follicles on his neck in November 2014 and May 2016. See e.g., lay statements dated  November 2012 and February 2014; VA treatment records dated November 2014 and May 2016. 

This evidence suggests that the Veteran’s skin texture has been abnormal throughout the appeal period, to include when it was manifested by scarred skin when he did not have a beard and when it was manifested by inflamed hair follicles when he was wearing a beard. The Board acknowledges that the evidence dated prior to February 2019 does not provide a measurement of the area impacted by the Veteran’s scarring or inflamed hair follicles; however, the Board finds probative that the November 2014 and May 2016 VA examinations reflect that his inflamed hair follicles were located over his neck and the February 2019 VA examination describes the total area impacted by the service-connected disability under his jaw and neck as approximately 54 square cms. In this regard, the Board notes that the evidence of record does not suggest that the Veteran’s service-connected disability has spread over the course of the appeal period to include a bigger area on his head, face, and neck. Instead, it seems likely that the total area impacted by the Veteran’s service-connected disability under his jaw and neck has remained relatively the same, although on some occasions it has been covered by a beard.   

Given the foregoing, the Board finds the lay and medical evidence raises a reasonable doubt as to whether the Veteran’s service-connected disability was manifest by abnormal skin texture in an area measuring at least 39 square cms throughout the appeal period. As this evidence reflects one characteristic of disfigurement and such doubt is resolved in favor of the Veteran, the Board finds an initial 10 percent rating is warranted under DC 7800. 

The Board has considered whether a rating higher than 10 percent is warranted; however, the evidence dated prior to February 2019 does not contain sufficient information to establish or raise reasonable doubt as to whether the disability is manifest by two or more of the characteristics of disfigurement or any of the other symptoms needed to warrant the next higher rating. Indeed, the evidence dated prior to February 2019 does not reflect that the Veteran’s disability was manifest by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features. Nor does the evidence show or suggest any of the other characteristics of disfigurement, to include scarring that is five or more inches in length, at least one-quarter inch wide at widest part, or adherent to underlying tissue, elevated or depressed surface contour on palpation; hypo- or hyper-pigmented skin, missing underlying soft tissue, or indurated and inflexible skin. In this regard, the Board again notes that, while the evidence suggests that the Veteran’s service-connected disability has not fluctuated in presentation or severity during the pendency of the appeal, the available evidence dated prior to February 2019 does not provide a sufficient information about the disability to award a rating higher than 10 percent under DC 7800. 

With respect to the rating assignable from February 6, 2019, the Board again notes the evidence shows the service-connected disability was manifested by multiple slightly raised, round, mildly irregular, hyperpigmented skin lesions under his jaw and over his neck which measured 0.2 to 0.3 cm in diameter over an area 12 cm long and 4.5 cm wide or an approximate total area of 54 square cms. This evidence shows the disability was manifest by three characteristics of disfigurement, including elevated surface contour on palpation, hyper-pigmented skin in an area exceeding six square inches 39 sq. cms, and mildly irregular skin texture in an area exceeding six square inches, which warrants a 30 percent rating under DC 7800, effective February 6, 2019.

A higher, 50 or 80 percent rating is not warranted, however, as the lay and medical evidence does not reflect that the service-connected disability is manifested by a scar 0.6 cm in width, visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features or manifest by two additional characteristics of disfigurement, such as measuring five or more inches in length, being adherent to underlying tissue, having missing underlying soft tissue or indurated and inflexible skin in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118.

In evaluating this claim, the Board acknowledges the Veteran believes that his disability has been more severe than the assigned disability ratings reflect. The Board also notes the Veteran is competent to report observable symptoms, to include the scarring and dry itchy skin he experiences as a result of his PFB and eczema disability and the frequency of his exacerbations. Indeed, the Board has considered the lay evidence of record in assigning the higher ratings throughout the appeal period and, for reasons explained above, the lay and medical evidence does not show that the Veteran’s disability more nearly approximates the criteria for a rating higher than 10 percent prior to February 6, 2019 or a rating in excess of 30 percent thereafter.  

The Board has considered also considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation.  However, the evidence does not reflect that the service-connected eczema and PFB disability would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118.

In conclusion, the Board finds that the preponderance of the evidence supports the grant of an initial 10 percent rating, but no higher, for the Veteran’s service-connected eczema and PFB disability, as the evidence shows his disability has been manifest by one characteristic of disfigurement throughout the appeal period. The preponderance of the evidence does not support the grant of a 50 percent rating from February 6, 2019. In making this determination, all reasonable doubt has been resolved in favor of the Veteran.

Service Connection

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. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a).

Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability that became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). 

A qualifying chronic disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) IBS; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that VA determines warrants a presumption of service connection under 38 U.S.C. § 1117(d). 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

In this case, the Veteran’s DD Form 214 reflects that he received the Kuwait Liberation Medal and Southwest Asia Service Medal, which sufficiently establishes his service in Southwest Asia. Therefore, the Veteran is considered a Persian Gulf War veteran with qualifying active service sufficient to trigger the application the laws and provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(a)(1).

6. Entitlement to service connection for depression

7. Entitlement to service connection for a disability manifested by memory loss

8. Entitlement to service connection for a disability manifested by stress

The Veteran seeks service connection for depression, memory loss, and stress, all of which he has asserted are related to his service-connected PTSD disability. See e.g., February 2020 VA Form 9. Indeed, the Veteran has not asserted, nor does the evidence otherwise show, that the claimed depression, memory loss, or stress were incurred during or as a result of his period of active service. Therefore, entitlement to service connection on a direct basis will not be discussed. 

As for secondary service connection, the law provides that service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310.

In this case, however, the preponderance of the evidence shows that the Veteran’s depression, memory loss, and stress are part and parcel of his service-connected PTSD disability, as opposed to separate and distinct disabilities that are due to or aggravated by his PTSD disability.

The claims file contains VA treatment records dated from 2012 to 2020 which consistently describe the Veteran’s memory as intact and good and do not contain any reports or complaints of stress. However, the records show the Veteran has been prescribed medication for stress/hypertension and clinicians have discussed whether stress or fatigue is the cause of his non-related left eye twitching. See e.g., VA treatment records dated December 2013, May 2015, and December 2016. Nevertheless, the records do not reflect that the Veteran has been diagnosed with a distinct disability primarily characterized by memory loss or stress. 

The medical evidence does reflect that the Veteran has reported having depression in addition to nightmares as early as May 2013 and that he has been prescribed medication for depression and anxiety since that time. Notably, clinicians questioned whether the Veteran’s depression and nightmares were attributable to PTSD and, in this regard, the evidence shows that his PTSD screen was positive at that time and intermittently thereafter, whereas his depression screen was negative despite his occasional reports of depression. See e.g., VA treatment records dated May 2013, May 2014, May 2015, June 2016, and June 2017. 

During a July 2017 outpatient triage assessment, the Veteran endorsed having depression in addition to other symptoms and was assigned a provisional diagnosis of PTSD. Upon further outpatient evaluation, a diagnosis of major depressive disorder was assigned, although subsequent treatment records also reflect concurrent diagnoses of PTSD and depression. See e.g., VA treatment records dated July and August 2017 and July 2018. In this context, the Board notes that the evidence reflects that the Veteran did not request or engage in any consistent mental health therapy or treatment and, thus, the outpatient treatment records and the diagnostic impressions contained therein do not appear to provide a comprehensive mental status or psychiatric evaluation.

Regardless, the Veteran has been afforded two VA examinations during the pendency of this appeal which included comprehensive mental status examinations consistent with the criteria of DSM-IV and V and during which a diagnosis of PTSD was rendered. Notably, both examiners indicated that more than one mental disorder was not diagnosed. See VA examinations dated November 2013 and January 2019. During both examinations, the Veteran endorsed having mild memory loss and, during the January 2019 examination, he also endorsed having depressed mood and the examiner noted he had poor stress tolerance. 

In this regard, the Board notes that the initial 50 percent disability rating assigned for the Veteran’s service-connected PTSD contemplates his depressed mood, mild memory loss, and the impairment caused by the Veteran’s symptoms during periods of significant stress, whereas the 70 percent rating assigned from January 2019 also contemplates those symptoms, in addition to his difficulty adapting to stressful circumstances. See rating decisions dated February 2014 and September 2020. 

In evaluating the ultimate merit of these claims, the Board finds the VA examinations to be the most competent, credible, and probative evidence as to the Veteran’s appropriate mental health diagnosis, which in this case is shown to be PTSD. As previously noted, while the VA treatment records also contain a diagnosis of major depressive disorder, the Board finds that the diagnosis of PTSD rendered during the VA examinations is more probative as the PTSD diagnosis is based upon comprehensive mental status examinations consistent with the criteria of DSM-IV and V, whereas the basis of the diagnoses contained in the VA treatment records is not readily apparent. Indeed, as noted, while an initial provisional diagnosis of PTSD was rendered in July 2017, the treatment records do not contain adequate detail explaining or showing why the same clinician changed the Veteran’s diagnosis to major depressive disorder or subsequently noted both diagnoses of PTSD and depression. See e.g., VA treatment records dated July and August 2017 and July 2018. 

The Board also notes that, while the Veteran has sought establish service connection for depression, memory loss, and stress as separate disabilities from PTSD, he has reported that his PTSD is manifest by continuous panic and depression that affects his ability to function at work and school. He has also asserted that, if his stress and memory loss were considered part of his PTSD disability, a higher rating would have been awarded for that disability. See February 2014 and October 2017 notices of disagreement. 

Based on the foregoing, the Board finds the preponderance of the lay and medical evidence does not show or support a finding that the Veteran has a primary depression, memory loss, or stress disability that is a separate and distinct disability for which service connection may be granted. Instead, the lay and medical evidence shows that his symptoms have been attributed to or identified as symptoms of his service-connected PTSD disability, and the evidence shows that the ratings assigned for PTSD contemplate his depression, memory loss, and stress. 

In this regard, the Board notes that awarding service connection for depression, memory loss, and stress and assigning separate ratings for each would violate the pyramiding prohibition contained in 38 C.F.R. § 4.14, which provides that evaluation of the same disability under various diagnoses is to be avoided and that the evaluation of the same manifestations under different diagnoses, a practice known as “pyramiding,” is to be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). 

Therefore, the Board finds the preponderance of the evidence of record is against the award of service connection for depression, memory loss, and stress that are separate and distinct from any other disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not applicable, and the Veteran’s claims must be denied. 38 U.S.C. § 5107 (b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

9. Entitlement to service connection for alcohol abuse

The Veteran is seeking service connection for alcohol abuse as secondary to his service-connected PTSD disability. See VA Form 21-526EZ dated February 2016, June 2017, and March 2018. 

Service connection generally may not be awarded for alcohol or drug abuse. See 38 U.S.C. § 1110 (“no [VA] compensation shall be paid if the disability is the result of the veteran’s own willful misconduct or abuse of alcohol or drugs”); see also 38 U.S.C. § 105(a).

Service connection for alcohol and drug abuse may only be established on a secondary basis where it is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). In Allen v. Principi, the Court of Appeals for the Federal Circuit held that a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, the veteran’s service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Specifically, “where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” See Allen, 237 F. 3d at 1381.

The Veteran has asserted that he has a problem with alcohol, and, in this regard, VA treatment records show that, since May 2013, he has reported drinking four or more times a week with one or more drinks a day. See e.g., October 2017 NOD; VA treatment records dated May 2013 and May 2015. In July 2017, he also described his substance use as involving alcohol – specifically, six beers and two to three glasses of liquor, but in July 2019, he reported drinking one to two beers a week. Indeed, during the January 2019 VA examination, the examiner noted the Veteran’s report of fluctuations in the amount of alcohol he consumed. 

Nevertheless, the evidence of record does not reflect that the Veteran has been diagnosed with or treated for alcohol abuse or any alcohol or substance related disorder. Indeed, despite the evidence showing the Veteran has had several positive alcohol screens during outpatient treatment, clinicians have not rendered a formal diagnosis of alcohol abuse or substance use disorder during outpatient treatment or comprehensive VA mental status examinations. 

In evaluating this claim, the Board finds probative that both the DSM-IV and V provide criteria for alcohol related or addictive disorders and, yet, the examiners who conducted the November 2013 and January 2019 VA examinations did not provide any such diagnosis and indicated that a mental disorder other than PTSD was not diagnosed. The Board again notes that the January 2019 VA examiner documented the Veteran’s report of alcohol consumption but did not observe or note symptoms sufficient to support the diagnosis of an alcohol related disorder. The Board also notes that no such diagnosis is reflected in the treatment records associated with the claims file and the Veteran has not identified any outstanding evidence that would contain any such diagnosis. 

The Board acknowledges the Veteran’s competent reports as to the amount of alcohol he consumes and his belief that he has a problem with alcohol; however, the diagnosis of alcohol or substance related disorder is a complex medical question that requires medical observation, knowledge, and expertise that is generally beyond the competency of a lay witness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the medical evidence of record notes the Veteran’s alcohol consumption, but does not diagnose an alcohol abuse disorder.  The evidence does not reflect, nor has the Veteran alleged, that he has any medical education, experience, or training; nor has he offered any basis in common lay knowledge to support his opinion or identified any medical evidence to support his assertion that he has an alcohol related disorder. Further, the Veteran has not provided any competent lay evidence or statements establishing that his reported problems with alcohol result in functional impairment that affects his earning capacity. 

Based on the foregoing, the Board finds the preponderance of the competent evidence of record does not reflect that the Veteran has been diagnosed with an alcohol abuse or alcohol related disorder at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Veteran’s claim is denied, and the benefit of the doubt doctrine is not applicable.

10. Entitlement to service connection for chronic fatigue syndrome (CFS), to include fatigue and tiredness

The Veteran seeks service connection for chronic fatigue syndrome (CFS) as due to his exposure to environmental hazards during service in Southwest Asia. See e.g., January 2015 VA Form 21-526EZ. In support of his claim, the Veteran points to notations of fatigue in his service treatment records (STRs) and stated that his fatigue has persisted for years. See February 2014 NOD. 

The Veteran’s STRs document his complaints of feeling tired or poorly as early as August 2004, at which time clinicians ordered a battery of laboratory tests and advised him to follow up in two days. Records from the follow-up appointment show that the Veteran reported feeling much better with complete resolution of symptoms. See STRs dated August 2004. In April 2005, the Veteran sought treatment for snoring that he reported had persisted for many years but was worsening with apneas at night. Clinicians rendered assessments of snoring and fatigue and ordered a sleep study, which confirmed mild obstructive sleep apnea. See e.g., April 2005 STR. Notably, the clinicians who evaluated the Veteran and performed the sleep study documented his report of snoring at night and nonrestorative sleep, e.g., waking up still tired. See STRs dated July and August 2005. 

The Veteran has stated that his fatigue has persisted for years, which he is competent to report. However, the post-service treatment records do not contain any specific complaints or reports of fatigue or tiredness. Indeed, VA treatment records dated from 2013 to 2020 generally note the Veteran denied any symptoms of malaise or fatigue while seeking VA treatment. See e.g., VA treatment records dated December 2013, June 2017 and August 2019.

The Veteran was afforded a VA CFS examination in December 2013, during which he reported his medical history of difficulty sleeping and diagnosis of OSA, as well as his reports of continued trouble sleeping and not having much energy. He also reported being diagnosed with low testosterone and receiving testosterone injections two times a month. The examiner also noted that the Veteran had a documented diagnosis of hypogonadism and low testosterone on prior labs, which he stated contributed to the Veteran’s current fatigue. Indeed, the December 2013 VA examiner stated that the Veteran does not fit the VA criteria for CFS and stated that he believes the Veteran’s symptom of fatigue is secondary to multiple conditions, including his chronic insomnia and hypogonadism. See December 2013 VA CFS and Gulf War General Medical Examinations.

In November 2018, the Board requested a clarifying medical opinion regarding the Veteran’s complaints of fatigue and claimed CFS. In response, a VA physician rendered an opinion in March 2019 in which he stated the Veteran does not have diagnosis of CFS and has never been diagnosed with such in the past. The March 2019 VA examiner also opined that it is less likely than not that the Veteran’s complaints of fatigue and/or tiredness are related to an in-service injury or disease, including his exposure to environmental hazards in Southwest Asia or are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness. Instead, the VA examiner stated that the Veteran’s fatigue and tiredness are caused by his insomnia and, in this regard, the VA examiner further noted that the Veteran’s chronic sleep impairment is recognized as a symptom of his service-connected PTSD. 

By way of explanation, the VA examiner noted the Veteran’s report that he only gets four to five hours of sleep per night but will wake up two to three times during that time period. He also noted the Veteran’s report during the December 2013 VA examination that he was diagnosed with low testosterone and experiencing continued difficulty sleeping and lack of energy. He further noted the Veteran was no longer receiving testosterone injections and that, when asked why he thought he had CFS, the Veteran responded that he read the symptoms of CFS and thought he might have it. See March 2019 VA opinion. 

The Board notes that, for VA purposes, a diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activities to less than 50 percent of the usual level for at least six months; (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition; (ii) low grade fever; (iii) nonexudative pharyngitis; (iv) palpable or tender cervical or axillary lymph nodes; (v) generalized muscle aches or weakness; (vi) fatigue lasting 24 hours or longer after exercise; (vii) headaches (of a type, severity or pattern that is different from headaches in the premorbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and/or (x) sleep disturbance. 38 C.F.R. § 4.88(a).

In evaluating this claim, the Board finds probative that two VA clinicians have examined the Veteran, reviewed the claims file, and considered his reported symptoms and medical history and determined that he does not meet the criteria for a diagnosis of CFS with an explanation and rationale supporting their conclusions. Indeed, the December 2013 and March 2019 VA examinations and opinions are deemed the most competent, credible, and probative evidence of record with respect to the etiology of the Veteran’s reported fatigue and tiredness, and the Board notes there is no opposing medical evidence or opinion of record which suggests the Veteran has ever met the criteria for CFS. Further, given the specific criteria needed for a diagnosis of CFS and the complexity involved in rendering any such diagnosis, the Board finds the Veteran’s lay reports of experiencing fatigue during and since service, while competent, is not sufficient to establish a competent diagnosis of CFS. 

Therefore, the Board finds the preponderance of the competent evidence of record does not reflect that the Veteran has been diagnosed with CFS during the pendency of the claim or recent to the filing of the claim. 

In evaluating this claim, the Board also notes that the most competent, credible, and probative evidence of record also attributes the Veteran’s reported symptoms of fatigue and tiredness to the insomnia and chronic sleep impairment caused by his service-connected PTSD. In this regard, the Board also finds probative that the evidence also suggests that his fatigue and tiredness may be related to his service-connected OSA disability and non-service-connected hypogonadism and low testosterone. 

Because the Veteran’s reported symptoms of fatigue and tiredness have been attributed to a known clinical diagnosis and are not shown to be a multisymptom illness defined by a cluster of symptoms, service connection based on the presumption concerning a qualifying chronic disability is not warranted in this case. See 38 C.F.R. § 3.317. 

The Board further notes that the preponderance of the evidence shows his symptoms of fatigue and tiredness have been shown to be related to either his service-connected OSA or a symptom caused by his service-connected PTSD disability, e.g., insomnia or chronic sleep impairment. The Veteran has not otherwise asserted or identified any outstanding medical evidence that would show his symptoms of fatigue or tiredness is separate and distinct from his service-connected OSA or PTSD disabilities. Therefore, awarding service connection for fatigue and assigning a separate rating would violate the pyramiding prohibition contained in 38 C.F.R. § 4.14, as any functional impairment caused by the Veteran’s fatigue and tiredness is contemplated by the ratings assigned for his service-connected OSA and PTSD disabilities. 

Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of service connection, as the evidence does not show he has a current diagnosis of CFS or that he experiences fatigue or tiredness that is separate and distinct from his service-connected OSA or PTSD disabilities and which represents an undiagnosed illness or a medically unexplained chronic multi-symptom illness. Therefore, service connection for a CFS, to include fatigue or tiredness, must be denied.

11. Entitlement to service connection for a dental condition for compensation purposes, claimed as periodontal gum disease

In February 2012, the Veteran filed a claim seeking service connection for periodontal gum disease. See also January 2015 VA Form 21-526EZ. 

A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). The record reflects that, when the AOJ denied the Veteran’s claim for a dental condition for compensation purposes, it also forwarded his claim for dental treatment to the nearest VA medical center. See notification letters dated September 2012 and November 2012. In this regard, the evidence shows the Veteran has received Class II and Class V VA outpatient treatment and he has not specifically requested additional VA dental treatment. See e.g., VA treatment records dated April 2012, February 2013, and February 2015. Therefore, the Board finds the Veteran’s current claim is one for compensation only.

Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, DCs 9900-9916.

The STRs show that, in January 2011, the Veteran received dental treatment for complaints of frequent root hypersensitivity in the maxillary (top) right posterior portion of his mouth, which was diagnosed as chronic periodontitis affecting tooth #15. Evaluation also revealed gingival recession of the facial surfaces of teeth # 3, 4, and 5 and, at that time, the Veteran was shown to be missing teeth # 1, 16, 17, and 32. Treatment for the Veteran’s dental conditions included scaling and root planning, i.e., deep cleaning, of tooth #15 and a pedicle graft to treat the gingival recession, after which the Veteran was scheduled for six month maintenance. The STRs do not contain any additional complaints or treatment regarding a dental condition incurred during service. 

While the evidence does not note or describe the circumstances by which the Veteran lost teeth # 1, 16, 17, and 32, the Board finds probative that the evidence does not reflect, nor has the Veteran alleged, that he lost teeth # 1, 16, 17, and 32 due to trauma or disease other than periodontal disease that resulted in loss of substance of the body of the maxilla or mandible. Additionally, while the evidence documents the Veteran’s reported root hypersensitivity and diagnoses of periodontitis and gingival recession, there is no indication or allegation that these conditions were due to any trauma incurred during service.

The Board also notes that the post-service evidence shows the Veteran has received resin fillings for cavities in teeth # 9 and 11 and sought treatment for pain and sensitivity in teeth # 16, 18, and 19. See e.g., VA treatment records dated April 2012, February 2013, and February 2015. However, the evidence does not show, nor has the Veteran alleged, that he has lost any additional teeth due to trauma or disease other than periodontal disease incurred during service. In fact, the Veteran has only alleged that he continues to be treated for periodontal disease, a condition for which service connection may not be granted for compensation purposes, and the evidence also fails to show a diagnosis of the other disorders listed under DCs 9900-9016. See February 2020 VA examination. Therefore, the Veteran is not entitled to service connection for a dental condition because the evidence does not show he has a disability recognized for service connection purposes under the law. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a dental condition for compensation purposes, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b).

Earlier Effective Date

12. Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for right wrist ganglion cyst

13. Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for right fifth finger trigger finger

14. Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for hypertension

15. Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for erectile dysfunction

The relevant facts are not in dispute in this case. The Veteran received an honorable discharge from service in February 2012. In October 2011, he filed a pre-discharge compensation claim seeking service connection several disabilities, including a right wrist ganglion cyst, right 5th finger tendonitis, and high blood pressure. In November 2011, he also filed a claim seeking service connection for erectile dysfunction.

In an August 2012 rating decision (issued in September 2012), the Regional Office (RO), in pertinent part, granted service connection for right wrist ganglion cyst, right 5th finger trigger finger, hypertension, and erectile dysfunction, all effective from February 1, 2012, the day of the Veteran’s discharge from active service. See 38 C.F.R. § 3.400(b)(2)(i). 

In October 2012, the Veteran submitted an NOD as to all adjudicative determinations made in the August 2012 rating decision, including an earlier effective date for all claims granted therein. In June 2015, the RO issued a statement of the case (SOC) that addressed entitlement to an earlier effective date for the grant of service connection for every disability granted in the August 2012 rating decision, including the right wrist ganglion cyst, right 5th finger, hypertension, and erectile dysfunction disabilities, and the Veteran subsequently perfected his appeal as to every issue addressed in the June 2015 SOC. See August 2015 VA Form 9; see also April 2016 VA Form 8. 

In a November 2018 decision, the Board denied entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for the lumbar spine, cervical spine, bilateral plantar fasciitis, OSA with COPD, and eczema with pseudofolliculitis barbae disabilities which were granted in the August 2012 rating decision; however, the Board did not adjudicate the earlier effective date claims for the right wrist ganglion cyst, right 5th finger trigger finger, hypertension, and erectile dysfunction disabilities. Therefore, those claims have remained pending. 

Turning to the merits of the claims, the Board again notes that the relevant law states that, unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).

While the Veteran has filed claims seeking an effective date earlier than February 1, 2012 for the grant of service connection for his right wrist ganglion cyst, right 5th finger, hypertension, and erectile dysfunction disabilities, he has not asserted why he believes an earlier effective date should be granted and, in fact, there is no basis in the law on which the Board may grant an earlier effective date in this case.

As noted above, the record reflects that the Veteran submitted his claim for the disabilities at issue before he separated from service in February 2012. There is no dispute that these disabilities were incurred during and as a result of his military service; hence, the grant of service connection for the disabilities. Nevertheless, while the Veteran’s disabilities arose during service and he submitted his claim for benefits while he was on active duty, a Veteran cannot receive VA compensation benefits while still on active duty. 

Indeed, the earliest possible date from which service connection may be granted is the day the Veteran separated from active service which, in this case, is February 1, 2012, the date currently assigned. Therefore, the Veteran’s claims of entitlement to an earlier effective date for the grant of service connection for right wrist ganglion cyst, right 5th finger trigger finger, high blood pressure, and erectile dysfunction must be denied. 

REASONS FOR REMAND

1. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar spine degenerative joint disease (DJD) and strain

2. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine DJD and strain from February 6, 2019

3. Entitlement to an initial rating in excess of 20 percent for service-connected cervical spine DJD 

The Board finds a remand is needed for the lumbar and cervical spine increased rating claims on appeal in order to afford the Veteran adequate VA examinations. 

The Veteran was afforded VA back and neck examinations in January 2012 during which his range of motion was tested. The examination reports reflect that the January 2012 VA examiner indicated that the Veteran was unable to perform repetitive use testing in his back and neck but also indicated that there was no change in his range of motion after repetitive use testing, which is conflicting in nature. The Board also notes the Veteran reported having flare-ups of back and neck pain, but the VA examiner did not address whether and to what degree the Veteran experienced additional functional loss during his reported flare-ups. 

The Veteran was afforded additional VA back and neck examination in February 2019 during which he again reported having flare-ups of back and neck pain. With respect to his back, the Veteran reported that his flare-ups occur four days a week and prevent him from doing anything such that he stays in bed and takes medication. He also reported that, when his back pain increases in severity, his co-workers allow him to do tasks that can be done standing, as bending exacerbates his pain. Despite the foregoing, the February 2019 VA examiner stated that pain, weakness, fatigability, and incoordination do not significantly limit the Veteran’s functional ability during flare-ups and, as such, did not provide an estimate as to the additional loss in terms of range of motion. The Board finds the examiner’s notation in this regard is not consistent with the Veteran’s description of the functional loss experienced during his flare-ups, as he specifically describes significant additional limitation due to pain. See February 2019 VA back examination.

As for his neck, the Veteran described his flare-ups as severe pain that prevents him from turning his head to the left or right once every two months. The February 2019 noted that pain significantly limited the Veteran’s functional ability during flare-ups but, in estimating the additional loss, he did not document any additional loss in terms of range of motion or provide an explanation. See February 2019 VA neck examination. 

Additionally, while the February 2019 VA examiner noted that the Veteran experienced pain during passive range of motion in the back and neck, he did not report the degrees of limitation, including as a result of pain, or otherwise indicate that the Veteran’s passive range of motion was the same as that reported for active range of motion. See February 2019 VA back and neck examinations. 

Given the foregoing, the Board finds the examinations of record do not comply with 38 C.F.R. § 4.59 and the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), thereby necessitating the need for an additional remand. 

4. Entitlement to an initial rating in excess of 50 percent for service-connected obstructive sleep apnea (OSA) with chronic obstructive pulmonary disease (COPD) is remanded.

In the November 2018 remand, the Board directed that the Veteran be afforded a new VA examination with pulmonary function testing (PFT), as his service-connected disability can be evaluated under DCs 6847, for sleep apnea, or DC 6604, for COPD. 

The Veteran was afforded a VA examination in February 2019 during which the examiner questioned the previous diagnosis of COPD reflected in the November 2011 VA examination, as he noted the PFT results contained therein did not include flow-volume loops or volume-time curves which rendered interpretation of the results incomplete. The examiner further noted that, while PFTs were performed in February 2019 and the results were reported as acceptable and reproducible, there were problems with the flow-volume loops and contradictions in the numeric test data. As a result, the examiner noted the Veteran was afforded additional PFTs in March 2019, which also resulted in unacceptable results at least partially due to patient effort. The February 2019 VA examiner also noted a discrepancy in the diagnoses contained in the claims file with respect to the Veteran’s service-connected respiratory disability, including COPD as noted, as well as a diagnosis of asthma, but he did not provide a conclusion that clarifies the appropriate diagnosis in this case. See February 2019 VA examination report. 

As a result of the foregoing, the evidentiary record is in the same posture as it was at the time of the November 2018 remand, i.e., lacking evidence on which to evaluate the Veteran’s claim under DC 6604. Moreover, the evidence raises a question as to whether the Veteran’s service-connected respiratory disability is correctly identified to include COPD. 

Therefore, the Board finds a remand is needed for further medical examination and opinion to clarify whether the Veteran’s respiratory disability is manifest by restrictive or obstructive ventilatory defect and to determine the severity of his disability.  

5. Entitlement to service connection for peripheral neuropathy, left upper extremity is remanded.

In October 2020, the Board remanded this claim in order to clarify whether the Veteran has a neurologic disability affecting his left upper extremity (LUE) and to obtain an opinion as to whether any such disability is directly related to service or, in the alternative, is caused or aggravated by a service-connected disability. 

In November 2020, a VA clinician examined the Veteran and rendered a diagnosis of LUE peripheral neuropathy but opined that it is less likely than not that the disability is proximately due to or a result of his service-connected cervical spine DJD disability. See November 2020 VA examination and opinion. The opinion is inadequate because the examiner did not provide an adequate rationale in support of her opinion. Specifically, while the examiner opined that the Veteran’s LUE neuropathy is most likely secondary to his non-service-connected diabetes mellitus, she did not explain the basis of this conclusion or identify any evidence in support thereof. The Board also notes that the examiner did not provide an opinion as to direct service connection or the aggravation element of the secondary service connection claim, i.e., whether the Veteran’s LUE neuropathy is aggravated by the service-connected cervical spine disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Given the foregoing deficiencies, the Board finds a remand is needed to obtain an adequate medical opinion. 

6. Entitlement to service connection for Gulf War illness or an undiagnosed illness due to service in Southwest Asia is remanded.

7. Entitlement to service connection for bilateral testicular pain is remanded.

The Veteran is seeking service connection for bilateral testicular pain, which he has asserted is secondary to his service-connected erectile dysfunction. See June 2017 VA Form 21-526EZ. In August 2017, a VA examiner opined that it is less likely than not that the Veteran’s claimed testicular pain is related to his service-connected erectile dysfunction disability, noting that erectile dysfunction does not cause any pain in the testicular area at all. This opinion is inadequate, however, because it does not specifically address the aggravation element of the secondary service connection claim. See Allen, 7 Vet. App. at 448 (a medical opinion that a condition “is not related to” or “is not due to” another condition does not answer the question of aggravation). Therefore, an additional secondary service connection opinion is needed.

Additional evidentiary development is also needed to clarify whether the Veteran’s bilateral testicular pain is attributable to a known clinical diagnosis that was incurred during service or, in the alternative, represents an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to his service in Southwest Asia. In this regard, the evidence shows the Veteran complained of pain to the right groin area on one occasion during service. While clinicians noted he may have had a prior inguinal hernia, the Board is unable to determine if a formal diagnosis was rendered at that time. See undated STR. Regardless, this evidence suggests an in-service injury or disability to which the current complaints of testicular pain may be related. 

The post-service treatment records show the Veteran has sought treatment for burning and pain in his testicles and groin since 2013.  The evidence shows clinicians have treated his groin rash as a fungal infection and scrotal dermatitis. See e.g., VA treatment records dated December 2013 and March 2014; private treatment records dated April 2014. However, the evidence also shows clinicians have questioned whether his symptoms represent neuropathic pain attributable to diabetes or his lumbar spine disability. See e.g., VA treatment records dated March and May 2014, and May 2015; February 2019 Gulf War VA examination. 

Notably, while the March 2019 VA examiner opined that the Veteran does not have a diagnosis of “Gulf War syndrome,” he did not address whether the Veteran’s complaints of bilateral testicular pain are attributable to a known clinical diagnosis or represent an undiagnosed illness. See March 2019 VA opinion.

Therefore, the Board finds a remand is needed to obtain a medical opinion that adequately addresses the likely etiology of the Veteran’s bilateral testicular pain. Additionally, because there remains a question as to whether the Veteran’s bilateral testicular pain may represent an undiagnosed illness related to his service in Southwest Asia, the Board finds the claim of service connection for Gulf War illness or an undiagnosed illness is inextricably intertwined with this claim. Therefore, adjudication of the Gulf War illness or an undiagnosed illness claim must be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

8. Entitlement to an increased rate of special monthly compensation (SMC) is remanded.

Similarly, the Board finds that the issue of entitlement to an increased rate of SMC is inextricably intertwined with the claims being remanded herein. Therefore, adjudication of this claim must also be deferred. 

The matters are REMANDED for the following action:

1. Afford the Veteran a VA examination to determine the current severity of his service-connected lumbar spine and cervical spine disabilities. 

All indicated tests should be performed, including testing his lumbar and cervical spine range of motion and pain levels in active and passive range of motion and after repetitive use. The examination report should include the degrees of motion for active and passive range of motion testing, as well as repetitive use testing. 

The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, estimate range of motion during flare-ups or repetitive use. If the examination does not take place during a flare-up or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and provide the extent of motion loss described in terms of degrees based upon the lay and medical evidence of record.

2. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the nature and diagnosis of the Veteran’s service-connected respiratory disability. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. The need for an additional examination is left to the discretion of the examiner.

The examiner is requested to provide an opinion as to the following:

(a)	Is it as likely as not (50 percent or greater probability) that the Veteran’s service-connected respiratory disability includes COPD or any other restrictive lung disease, such as asthma?

If so, the Veteran should be scheduled for pulmonary function tests to determine the severity of any such disability.

If not, the examiner should provide a complete, well-reasoned explanation in support of his/her conclusion. In answering the foregoing, the examiner must address the February 2019 VA opinion and any other relevant lay or medical evidence of record.

3. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran’s left upper extremity peripheral neuropathy. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. 

The examiner is requested to provide an opinion as to the following:

(a)	Is it as likely as not (50 percent or greater probability) that the Veteran’s left upper extremity peripheral neuropathy was incurred during or as a result of the Veteran’s military service?

(b)	Is it as likely as not that the Veteran’s left upper extremity peripheral neuropathy was caused OR is/was aggravated by his service-connected cervical spine disability, to include any symptoms or manifestations thereof? 

An opinion must be provided with respect to causation and aggravation. 

If the examiner finds the Veteran’s left upper extremity peripheral neuropathy is attributable to another disability, such as diabetes mellitus, the examiner must explain why and identify evidence in support of the conclusion. The examiner should also address the evidence showing complaints of pain radiating from the cervical spine/neck into the left upper extremity. See March 2020 VA treatment record. 

A clear, well-reasoned rationale must be provided for all opinions, with consideration of the lay and medical evidence of record. 

4. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran’s reported bilateral testicular pain. The claims file must be reviewed, and the examination report must reflect that such review was accomplished. 

The examiner is requested to provide an opinion as to the following:

(a)	Is the Veteran’s reported bilateral testicular pain (i) a diagnosable but medically unexplained chronic multisymptom illness; (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology?

The term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 

(b)	The response to the question of whether the Veteran’s bilateral testicular pain is a MUCMI should include a discussion of the pathophysiology and etiology of the Veteran’s reported testicular pain. Pathophysiology is defined as the physiology of abnormal states; specifically, the functional changes that accompany a particular syndrome or disease. Consideration of pathophysiology and etiology is a veteran-specific inquiry, as opposed to an inquiry regarding the general knowledge of the medical community. 

(c)	If the Veteran’s bilateral testicular pain is consistent with either (ii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology or (iii) a disease with a clear and specific diagnosis, etiology, and pathophysiology, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the bilateral testicular pain was incurred in or is otherwise related to service, to include the report of groin pain in approximately 1996. 

In answering the foregoing, the examiner must consider and address the service and post-service treatment records, as well as the lay statements of record regarding the onset of his symptoms. A complete rationale must be provided for any opinion offered.

 

 

M. Donohue

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Turnipseed, 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.