Citation Nr: 21027017 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-14 373 DATE: May 4, 2021 ORDER An initial compensable disability rating for the service-connected neurodermatitis is denied. REMANDED Service connection for a disability manifested by dizziness and balance problems is remanded. Service connection for a neurological disability, to include headaches and residuals of a traumatic brain injury (TBI) and/or head injury, remanded. Service connection for obstructive sleep apnea, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT During the period on appeal, the Veteran's neurodermatitis has not been manifested by characteristic lesions involving 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 affected or systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. CONCLUSION OF LAW The criteria for an initial compensable disability rating for the service-connected neurodermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to April 1970 and from January 1971 to January 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2014, January 2017, and November 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the January 2014 rating decision, the RO denied service connection for OSA. In February 2014, VA received the Veteran's Notice of Disagreement (NOD). In August 2016, the RO issued a Statement of the Case (SOC). In August 2016, VA received the Veteran's VA Form 9 appeal to the Board. In the January 2017 rating decision, the RO denied service connection for dizziness and balance problems, headaches, and a concussion. In October 2017, VA received the Veteran's NOD; he appealed "dizziness and balance problems [due to head injury or concussion]" and "residuals of head injury/concussion." In February 2018, the RO issued a SOC. In March 2018, VA received the Veteran's VA Form 9 appeal to the Board. In a November 2018 decision, the Board denied the Veteran's claims for service connection for a "disorder manifested by dizziness and balance problems," TBI, and OSA, to include as secondary to PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an August 2019 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's November 2018 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. Meanwhile, in a November 2018 rating decision, the RO granted service connection for neurodermatitis and assigned an initial noncompensable disability rating, effective from March 26, 2018. In January 2019, VA received the Veteran's NOD. In August 2019, the RO issued a SOC. In September 2019, VA received the Veteran's VA Form 9 appeal to the Board. In February 2020, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMR, as to the issues of service connection for "balance and dizziness problems," "recurrent headaches," and OSA, and for additional development and adjudication, as to the issue of assignment of an initial compensable disability rating for the service-connected neurodermatitis. In July 2020, the Board remanded the case for additional development and adjudication. As an initial matter, the Veteran's claimed neurological disability has been phrased variously by the Veteran, RO, Board, and Court as a head injury, TBI (or concussion), residuals of a TBI, and headaches. Accordingly, the Veteran's claim is expanded to encompass all neurological disabilities, to include headaches and residuals of a TBI. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased Rating 1. Entitlement to an initial compensable disability rating for the service-connected neurodermatitis. The Veteran seeks an initial compensable disability rating for his neurodermatitis. The Veteran's service-connected neurodermatitis is currently rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7806. Thus, the neurodermatitis is rated under the General Rating Formula for the Skin. Under the General Rating Formula (current version effective from August 13, 2018), a noncompensable (0 percent) rating is assigned where there is no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. 38 C.F.R. § 4.118, General Rating Formula. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving 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 affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Id. A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id. A maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. Id. For purposes of the General Rating Formula, it is explicitly stated that for the purposes of the skin disability ratings, "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). The Veteran has a current diagnosis of neurodermatitis. The affected area is located on his left medial ankle. See September 2020 VA examination report. However, the Veteran's neurodermatitis has not been treated with systemic therapy, as defined by 38 C.F.R. § 4.118(a), during the period on appeal. During an October 2018 VA skin examination, the examiner noted constant/near-constant use of a topical cream (Urea 20) to control "intermittent itching" within the past 12-month period, but no other medications. The recent November 2020 VA skin examination revealed use of a topical corticosteroid (hydrocortisone cream) for less than 6 weeks within the past 12-month period, but no other medications. Although the hydrocortisone cream is a corticosteroid, it is not considered systemic for purposes of the General Rating Formula because it is topical in nature, and therefore, cannot be systemic therapy as defined in 38 C.F.R. § 4.118(a). There is no evidence of use of non-topical therapy to treat the neurodermatitis at any time during the period on appeal. Furthermore, the October 2018 and November 2020 skin examinations show that the Veteran's neurodermatitis has involved less than 5 percent of total body area and less than 5 percent of exposed areas. Based on the foregoing, the criteria for an initial compensable disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7806 for the service-connected neurodermatitis have not been met. Moreover, no rating higher than noncompensable is available under an alternative Diagnostic Code. Notably, both the October 2018 and November 2020 examiner did not observe any scars resulting from the neurodermatitis. Given the above, an initial compensable disability rating for the service-connected neurodermatitis is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by dizziness and balance problems. 2. Entitlement to service connection for a neurological disability, to include headaches and residuals of a TBI and/or head injury. The Veteran contends that his dizziness and balance problem and neurological impairments are related to a head injury incurred during service. He reports experiencing headaches since the age of 23 manifested by "aching in both temples, lasting a few hours, occurring 1-2x per month." September 2016 VA examination report. Specifically, the Veteran reported being involved in a June 1971 car accident during service. He recalled that he "was a passenger in a car which hit a cement wall and telephone pole." During the accident he "went through the windshield and then came back into the car after the impact." October 2017 Veteran statement. The Veteran reported experiencing a concussion and short period of unconsciousness. He was taken to Walter Reed Hospital for sutures and was sent home after a night of observation in the hospital. The following day the Veteran was taken back to the hospital "because he could not be awakened" and again stayed in the hospital overnight. July 2016 Addendum to Veteran's Supplemental Claim for Compensation. Service treatment records (STRs) confirm that the Veteran was involved in a car accident in June 1971. A record of the incident from Walter Reed Hospital reveals that the Veteran sustained lacerations to the scalp and chin following a car accident after his head went through the windshield. See STRs dated June 15, 1971. This record and a record from the following day do not show that the Veteran reported a loss of consciousness or was treated for a concussion. See id; STRs dated June 16, 1971. However, a June 17, 1971 STR reveals that the Veteran complained of "bitemporal headaches moderate" during a dressing change. Later during his second period of service, the Veteran complained of dizziness and emesis (vomiting) without other symptoms. STRs dated September 25, 1972. Although the Veteran reported a head injury from the June 1971 car accident on his separation Report of Medical History, the physician conducting the separation examination noted that the injury had resolved with "no complications." Furthermore, the Veteran denied frequent or severe headache and dizziness or fainting spells. See STRs dated January 11, 1974. The records also contains no diagnosis of a TBI. In this regard, the Veteran received a VA TBI examination in December 2016. The examining neurologist concluded that the Veteran had not suffered a TBI and was not currently experiencing TBI residuals. However, as noted by the August 2019 JMPR, the December 2016 neurologist failed to adequately consider whether the Veteran's "documented in-service head injury (whether it is diagnosed as a TBI or not) is related to [the Veteran's] current dizziness, loss of balance, and headaches." Specifically, the neurologist failed to provide a rationale for the conclusion that the dizziness, loss of balance, and headaches were unrelated to the in-service head injury regardless of whether there was a TBI diagnosis. Accordingly, in February 2020, the Board remanded the claims for another VA examination and opinion; the reviewing examiner was asked to opine whether the dizziness, loss of balance, and headaches were related to the in-service head injury and to state whether the Veteran suffered a TBI during service and provide a rationale justifying the TBI finding. In September 2020, the Veteran received a VA examination and opinion for his dizziness and balance problems. The September 2020 examiner provided a diagnosis of vasovagal syncope. However, the examiner determined that the Veteran's dizziness and balance problems were less likely than not related to service. Perplexingly, the examiner's rationale is jumbled with evidence notes and history. Notwithstanding, the rationale for the negative September 2020 opinion did not specifically address the diagnosed vasovagal syncope; in fact, the examiner paradoxically noted that the Veteran had never been diagnosed with a "balance issue." Furthermore, although the examiner discussed at length whether the Veteran suffered a TBI during service (or at least cited prior evidence discussing the point at length), the examiner did not specifically address nexus to the in-service head injury, irrespective of whether the Veteran suffered a TBI. Following submission of the September 2020 opinion, the RO sought clarification from the examiner regarding the etiology the nexus opinion, as the "rationales for the claimed conditions provided are written in with the notes/history," including for the vasovagal syncope diagnosed during the September 2020 examination. See October 2020 exam rework scheduling request. However, in a November 2020 addendum, the examiner merely defined vasovagal syncope and, elsewhere in the opinion, reproduced the patchwork of evidence and history and rationale given in the September 2020 opinion. The same examiner conducted a VA examination and offered an opinion for the Veteran's claimed headaches in October 2020. The examiner provided a diagnosis of tension headaches. However, the examiner concluded that the Veteran's headaches were less likely than related to service. As with the opinion for dizziness and balance problems, the examiner's rationale is intermingled with evidence notes and history. Nevertheless, the opinion seems to rely almost entirely upon a prior October 2016 VA examination and opinion for headaches. Notably, at the time of the October 2016 examination, a headache disability had not been formally diagnosed, yet during the October 2020 examination, the examiner provided a formal diagnosis. The sole apparent new rationale provided for the opinion was that the Veteran "has no documented occurrence of headache while in the service and in fact the only reference is in the VA record on 2014 as headaches occurring as a side effect of his medication." This finding is inconsistent with STR evidence, as the Veteran did, in fact, seek treatment for headaches during service several days after the June 1971 car accident. Again, the RO sought clarification regarding the rationale for the negative nexus opinion. In the November 2020 addendum, the examiner largely reproduced the confusing September 2020 opinion, including the finding that the Veteran did not report headaches during service. However, the addendum egregiously cites a portion of the October 2016 opinion that acknowledges that the Veteran reported headaches several days after the June 1971 car accident. Additionally, nowhere in either opinion did the examiner state whether the Veteran's current headaches are related to the in-service head injury, regardless of whether the Veteran suffered a TBI during service. Based on the foregoing, as the September 2020 examinations and opinions (and the November 2020 addendum opinions) are internally inconsistent, inconsistent with other evidence of record, and remarkably unclear, they are insufficient to support a decision on the claims. Accordingly, remand is warranted for additional VA opinions for the Veteran's disability manifested by dizziness and balance problems (now diagnosed as vasovagal syncope) and headaches (now diagnosed as tension headaches). 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected PTSD. The Veteran believes that his OSA is proximately due to or aggravated by his service-connected PTSD or is otherwise related to service. A March 2020 sleep study revealed a diagnosis of "mild" OSA. The Veteran's representative has submitted literature purporting to show a link between PTSD and OSA in Veterans. See literature received on November 13, 2020. The examiner who completed VA examinations and opinions for the Veteran's dizziness and balance problems and headaches also completed an examination and opinion for the Veteran's OSA in September 2020. Unfortunately, the etiology opinion suffers from similar deficiencies as the other opinions. In this regard, the opinion consists of regurgitated evidence notes with new rationale indistinguishable from evidence in the existing record. The examiner concluded that the Veteran's OSA was less likely than not related to service or proximately due to or aggravated beyond its natural progression by the service-connected PTSD. However, none of the rationale is directed towards direct nexus to service. To the extent that the rationale addresses secondary nexus, it does not distinguish between causation and aggravation. Furthermore, that portion of the rationale, which appears to have been taken word-for-word from a previous VA opinion, indicates that the Veteran has not been diagnosed with OSA when the examiner previously noted the diagnosis of OSA in the attached examination report. Again, the November 2020 addendum failed to provide clarification. Most of the addendum directed towards OSA is copy-and-pasted from the September 2020 opinion and repeats that opinion's errors and contradictions. Furthermore, the November 2020 addendum failed to address the treatise evidence submitted by the Veteran's representative. In light of the puzzling and contradictory nature of the September 2020 opinion and November 2020 addendum addressing the etiology of the Veteran's OSA, remand is warranted for a new VA opinion in support of the claim. The matters are REMANDED for the following action: 1. Obtain a VA opinion regarding the etiology of the Veteran's disability manifested by dizziness and balance problems and neurological disability, to include headaches and residuals of a TBI, from a neurologist or other appropriate clinician. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate review of the claims file and this Remand in the report. A clear rationale for all opinions must be provided. In this regard, evidence reviewed should be indicated in a separate section of the report from the examiner's rationale for the opinions provided. As indicated in the questions below, the examiner should provide opinions regarding nexus of the currently diagnosed tension headaches and disability manifested by dizziness and balance problems to the June 1971 head injury regardless of whether a TBI is diagnosed. The examiner should answer the following questions: (a.) Did the Veteran suffer a traumatic brain injury (TBI) during service? (b.) If the Veteran suffered a TBI during service, is it as least as likely as not (a 50 percent or greater probability) that his currently diagnosed tension headaches are related to the in-service TBI? (c.) If the Veteran suffered a TBI during service, is it as least as likely as not that his disability manifested by dizziness and balance problems (now diagnosed as vasovagal syncope) are related to the in-service TBI? (d.) If the Veteran did not suffer a TBI during service, is it as least as likely as not that his currently diagnosed tension headaches are related to the in-service head injury? (e.) If the Veteran did not suffer a TBI during service, is it as least as likely as not that his disability manifested by dizziness and balance problems (now diagnosed as vasovagal syncope) are related to the in-service head injury? (f.) If the answers to (b) and (d) are negative, is it as least as likely as not that the Veteran's currently diagnosed tension headaches are otherwise related to service? (g.) If the answers to (c) and (e) are negative, is it as least as likely as not that his disability manifested by dizziness and balance problems (now diagnosed as vasovagal syncope) are otherwise related to service? In answering the above, the examiner should specifically address: i. The Veteran's statements about the June 1971 car accident; that he was a passenger in a car that hit a cement wall and telephone pole and his head went through the windshield. ii. The Veteran statements about experiencing a loss of consciousness and being unable to wake up the following day. iii. June 15, June 16, and June 17, 1971 STRs describing the initial accident, treatment, and report of temporal headaches two days after the accident. iv. The September 25, 1972 STR describing dizziness and emesis without other symptoms. v. The Veteran's reports of continuity of intermittent headache symptoms from service. 2. Obtain a VA opinion regarding the etiology of the Veteran's obstructive sleep apnea (OSA) from an appropriate clinician. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate review of the claims file and this Remand in the report. A clear rationale for all opinions must be provided. In this regard, evidence reviewed should be indicated in a separate section of the report from the examiner's rationale for the opinions provided. The examiner should answer the following questions (separately): (a.) Is the Veteran's currently diagnosed OSA at least as likely as not (a 50 percent of greater probability) proximately due to his service-connected posttraumatic stress disorder (PTSD)? (b.) Is the Veteran's currently diagnosed OSA at least as likely as not aggravated beyond its natural progression by the service-connected PTSD? (c.) Is the Veteran's currently diagnosed OSA at least as likely as not otherwise related to service? The examiner should specifically address in the opinion literature submitted by the Veteran's representative, including: i. "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort." ii. "OSA syndrome and Posttraumatic Stress Disorder." (Continued on the next page) iii. "Depression and Obstructive Sleep Apnea (OSA). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.