Citation Nr: 21042008 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-63 460 DATE: July 11, 2021 ORDER Entitlement to service connection for a pulmonary (lung) disorder is denied. Entitlement to a compensable rating for eczema is denied. Entitlement to a compensable rating for tinea pedis (athlete's foot) is denied. Entitlement to a compensable rating for bilateral ingrown toenails is denied. Entitlement to a compensable rating for headaches is denied. FINDINGS OF FACT 1. The most probative evidence does not reach the level of equipoise as to whether the Veteran has a current pulmonary disorder that had its onset during or is etiologically related to military service. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran's eczema manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran's tinea pedis manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. 4. The most probative evidence does not reach the level of equipoise as to whether the Veteran's bilateral ingrown toenails manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. 5. The most probative evidence does not reach the level of equipoise as to whether the Veteran's headaches manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a pulmonary disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for eczema have not been met. 38 U.S.C. §§ 1155, 5107: 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. 3. The criteria for entitlement to a compensable rating for tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107: 38 C.F.R. § 4.118, DC 7813-7806. 4. The criteria for entitlement to a compensable rating for bilateral ingrown toenails have not been met. 38 U.S.C. §§ 1155, 5107: 38 C.F.R. § 4.118, DC 7806. 5. The criteria for entitlement to a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107: 38 C.F.R. § 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 2009 to November 2013. He received the Afghanistan Campaign Medal with Two Stars, the Navy Unit Commendation, and the Combat Action Ribbon, among other decorations. The Board thanks him for his honorable military service. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In January 2019, the Board remanded claims for service connection for a pulmonary disorder, and compensable ratings for scars, headaches, eczema, ingrown toenails, and tinea pedis for further development. The Veteran attended VA examinations in November 2020. After reviewing the examination reports, the Board finds that they are substantially compliant with the prior remand directives. Therefore, the Board will proceed with a decision on the merits. The Board notes that the agency of original jurisdiction (AOJ) granted a 10 percent rating for scars from November 20, 2020, based on two painful residual scars from a mole removal. See C&P Exam, November 2020. The AOJ informed the Veteran that it was a "full grant" of the appeal. The Veteran filed a VA Form 10182 and selected the hearing docket in December 2020. He indicated that he was appealing the effective date of the 10 percent rating assigned for scars. Ordinarily, a Veteran is presumed to be seeking the maximum rating, and the rating schedule does allow a higher rating for scars, if supported by the evidence of record. AB v. Brown, 6 Vet. App. 35 (1993). However, as the Veteran has indicated that he wishes to appeal the effective date assigned for the rating in the AMA system as opposed to the amount of the rating itself, the Board will not remand the claim for an increased rating for scars for a Supplemental Statement of the Case in the legacy system. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a VA compensation claim. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 as requiring the existence of a present disability cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for a pulmonary disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a pulmonary disorder. Therefore, the claim may not be granted. The Veteran was treated for acute bronchitis in military service in March 2009. A few weeks later, pulmonary stress testing was normal and the bronchitis was listed as "resolved". The record does not show further reports or treatment of bronchitis or a pulmonary disorder during service. The separation medical assessment noted that the Veteran had one episode of bronchitis, which healed without complication. Thus, the questions for the Board are: (1) whether there exists a current pulmonary disorder and (2) whether there exists a nexus between any current pulmonary disorder and the episode of acute bronchitis during military service. VA medical records show that the Veteran denied shortness of breath during a primary care visit in January 2014. He had pulmonary function testing (PFT) in April 2014. The physician noted no abnormalities and listed an impression of "relatively normal PFT". A respiratory therapist indicated that testing was ordered because of a "diagnosis of asthma/pneumonia" but did not clarify if the Veteran had current symptoms of asthma or pneumonia or whether the testing was ordered to clarify if there were residuals of his past diagnosis. During a primary care consultation in December 2014, the Veteran denied any shortness of breath. The Veteran had another round of PFT in July 2015. The nurse indicated that the tests were ordered because the Veteran had a diagnosis of dyspnea (trouble breathing). However, the PFT again showed no abnormalities and the physician did not diagnose any lung disorder. In December 2015, the Veteran went to see a nurse at a VA facility after having a cough and congestion over the past three days. His lung sounds were clear bilaterally and afebrile. The nurse recommended that he rest, hydrate, and return to the clinic if his symptoms did not improve. The record does not show further follow-up treatment for those symptoms. In February 2016, the Veteran reported chest pain on breathing, described as an occasional substernal pleuritic chest pressure lasting a few seconds to two minutes. He denied having shortness of breath and his lungs were clear. The physician noted that the Veteran is a current smoker and was given a strong message to quit using tobacco. The physician suspected musculoskeletal chest pain and did not diagnose a respiratory or lung disorder. The Veteran appeared for a VA examination in November 2020. The examiner performed a physical evaluation, including PFT, and found that the Veteran did not have any respiratory disorder. After reviewing the claims file, the examiner opined that it is less likely than not that there is a current respiratory disorder related to an in-service injury, event, or disease, including residuals of pneumonia and bronchitis. As rationale, he explained that "the Veteran does not have evidence of an objective chronic respiratory condition to relate to service." He found that the records show treatment for acute bronchitis in 2009; however, there is no evidence to suggest a chronic lung condition during the remainder of service or within a year of discharge. Considering the lack of evidence of a chronic respiratory condition in service or within a year of discharge, the examiner found that the Veteran's bronchitis in service was acute and transitory and resolved without residuals. He emphasized that the current exam was negative for objective respiratory disease. After careful review, the Board finds that the most probative evidence does not reach the level of equipoise in the claim at issue. In reaching this finding, the Board has considered the medical evidence. The November 2020 VA examiner performed objective PFT, but found that such evidence did not support a current pulmonary disorder. He reviewed the medical history and found that the bronchitis in service was acute, transitory, and resolved without residuals. As the examiner reviewed the claims file, and gave a persuasive medical opinion consistent with his professional expertise, the Board finds his conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's lay statements. A lay person is considered competent to describe matters that are capable of ordinary observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the ability to diagnose a lung disorder or link any such disorder or its symptoms to military service requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board is cognizant that the Veteran denied experiencing shortness of breath in January and December 2014, and in February 2016. Therefore, the Board affords higher probative weight to the competent medical evidence. The Board has carefully and sympathetically reviewed the Veteran's claim at issue. However, the Board finds that the evidence in this case does not reach the level of equipoise as to the existence of a current pulmonary disorder or a nexus between any such disorder and military service. Thus, service connection for a pulmonary disorder must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility). Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 2. Entitlement to a compensable rating for eczema The Board finds that the most probative evidence does not support a compensable rating for eczema; thus, the claim may not be granted. The Veteran's eczema is rated under the General Rating Formula for the Skin at 38 C.F.R. § 4.118, DC 7806. Under the criteria therein, a non-compensable rating is warranted for skin disorders involving less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted for involvement of 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; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for involvement of 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected,; when systemic therapy such as with corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is warranted for involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. 38 C.F.R. § 4.118, DC 7824. The term "systemic therapy" does not automatically include topical steroids, and the Board must make a case-specific factual determination. Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). The Board notes that applicable regulations for rating skin disorders have changed for claims pending on August 13, 2018, and that such regulations should be followed if they are more favorable to the Veteran. See 83 Fed. Reg. 32,592 (July 13, 2018). However, the new regulations set bright line rules for what constitutes a "topical" versus a "systemic" treatment, and define a "systemic" treatment as "therapy administered through any route other than the skin." As such, the Board will apply the old criteria as it is potentially more favorable to the Veteran. Turning to the evidence of record, the Veteran attended a primary care consultation in January 2014. He reported that he was given several creams by the military for his eczema, but did not need any medication currently and only needed the cream "on rare occasions". The doctor noted that there were no active medications listed in the Veteran's file, and that the last hydrocortisone cream prescription was filled at Camp Lejeune in January 2013. The doctor indicated that the Veteran should continue hydrocortisone cream as needed, but did not renew the prescription. In December 2014, the Veteran stated that he was concerned about potential melanoma and would like to have his skin checked. The physician assessed benign neoplasms of the skin, but did not note current eczema or indicate a severity of eczema at that time. No treatment was provided for a skin disorder at that time. The Veteran underwent a VA examination in June 2015. He reported treatment for patchy lesions during service in 2011, and obtained relief through topical steroids. The examiner noted that he had not had any topical or oral medications in the past 12 months for any skin disorder. Physical examination revealed eczema on less than 5 percent of the exposed areas and less than 5 percent of the total area. A February 2016 primary care note does not show any reports of eczema symptoms or active medications (including hydrocortisone) to treat the disorder. In May 2017, the Veteran reported having a persistent papular skin rash. However, a physical examination showed no significant skin lesions. The physician did not assess a current skin disorder or prescribe any treatment for a skin condition. In June 2019, a VA skin screening revealed no reports of a persistent skin rash. The Veteran underwent another VA examination in November 2020. He reported using over the counter moisturizer but denied additional treatments. The clinician noted that the Veteran currently had "minimal symptoms" on his left anterior trunk. He found that the Veteran had not been treated with any topical or systemic therapy over the past 12 months. Physical examination revealed eczema on less than 5 percent of the total area and none of the exposed area. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for eczema. During the rating period, the Veteran's eczema manifested functional impairment equivalent to less than 5 percent of the exposed and total body area. Such a level of functional impairment is consistent with a non-compensable rating. 38 C.F.R. § 4.118, DC 7806. Although the Veteran was given hydrocortisone cream at Camp Lejeune in 2013, he stated that he did not currently need any medication for eczema during his primary care visit in January 2014. Moreover, there is nothing in the record to suggest that the Veterans' topically applied cream may be considered a "systemic" therapy or indeed, that he actually used it during the rating period. The Board also notes that the June 2015 VA examiner found that no topical or oral medications had been used in the past 12-month period. As such, the record does not reflect functional impairment consistent with a compensable rating. 38 C.F.R. § 4.7. The Veteran's lay reports were considered. However, disability ratings are determined by the application of the rating schedule which does not support a higher rating. In sum, as the most probative evidence does not reflect impairment consistent with a higher rating, the claim must be denied. 3. Entitlement to a compensable rating for tinea pedis The Board finds that the most probative evidence does not support a compensable rating for tinea pedis. Therefore, the claim may not be granted. The Veteran's tinea pedis is rated under DC 7813-7806. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, the disorder is rated under the General Rating Formula for the skin as described in the previous section. 38 C.F.R. § 4.118, DC 7806. VA medical records do not reflect complaints or treatment for athlete's foot during the rating period. The Veteran did not mention athlete's foot or painful blisters on his feet during his VA primary care appointments in January or December 2014, despite voicing concern about other skin disorders. The Veteran underwent a VA examination in June 2015. He related that his athlete's foot occurred while deployed to Afghanistan, and, after his return, he had blisters on the bottom and sides of his feet and itching and peeling on the tops of his feet. He reported that his disorder returns every few months. The examiner evaluated the Veteran's feet, but did not find any visible athlete's foot. He did not indicate that the Veteran was taking any current medication for athlete's foot. The Veteran submitted lay statements with his VA Form 9 in December 2016. He asserted, among other things, that he came home from Afghanistan with severe athlete's foot, which his family called "alligator foot" because his feet were so scaly. He stated that after this cleared up, he still has huge painful blisters that pop up on his feet on a weekly basis. He stated that he can barely walk when the blisters appear and that they interfere with his ability to work. The Veteran had a VA primary care appointment in May 2017. He did not mention any athlete's foot or blisters as a present concern. A physical examination did not show any athlete's foot or significant skin lesions. In May 2018, another primary care appointment revealed no mention of any reports or treatment for athlete's foot or blisters on the feet. In March 2019, the Veteran asked his primary care clinician to examine his torso for possible melanoma. However, the Veteran did not report any athlete's foot or blisters, and the clinician did not document any of the same. The Veteran appeared for another VA examination in November 2020. He reported "minimal symptoms presently" and having "no current treatment" for athlete's foot. The examiner found no evidence of treatment for athlete's foot in the past 12 months. On physical inspection, athlete's foot was determined to be in less than 5 percent of the total body area and none on the exposed areas. The examiner stated that there was mild peeling between the toes consistent with tinea pedis. After careful review, the Board finds that the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for tinea pedis. The Veteran's disorder has manifested with functional impairment, at its most severe, limited to encompassing less than 5 percent of the total body area and not requiring topical or systemic medication. Such impairment is consistent with a non-compensable rating. 38 C.F.R. § 4.118, DC 7806. The record does not reflect functional impairment to the extent that a higher rating may be assigned. 38 C.F.R. § 4.2. The Veteran's lay statements have been considered, including reports of weekly painful blisters on his feet. However, the Board notes that the Veteran did not report painful blisters or current athlete's foot to his VA primary care providers during the appeal period, despite reporting other skin symptoms. Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may properly consider internal consistency and consistency with other evidence of record when determining the credibility of lay evidence). In sum, as the most probative evidence does not reflect impairment consistent with a higher rating, the claim must be denied. 4. Entitlement to a compensable rating for bilateral ingrown toenails The Board finds that the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for bilateral ingrown toenails. Therefore, the claim may not be granted. The Veteran's bilateral ingrown toenails are rated under DC 7813-7806. 38 C.F.R. § 4.27. In this case, the disorder is rated under the General Rating Formula for the skin as described previously. 38 C.F.R. § 4.118, DC 7806. The Veteran underwent a VA examination in June 2015. He stated that he had recurring ingrown toenails on his bilateral great toes, but did not report any current symptoms or pain from his toenails. The examiner noted that the disorder had not caused infections and was controlled by toenail cutting. Physical examination did not show any current impairment related to ingrown toenails, and the examiner did not list any current treatment for ingrown toenails. The Veteran appeared for another VA examination in November 2020. He reported ingrown toenails in service which have been recurrent, but no current symptoms or treatment. The examiner found that none of the total or exposed body area was affected by the disorder and that the Veteran was not currently taking any treatment for ingrown toenails. The Board has reviewed the Veteran's VA medical records. However, such records do not show evidence of functional impairment, including pain from ingrown toenails, to the extent that a compensable rating may be assigned for bilateral ingrown toenails. See 38 C.F.R. §§ 4.2, 4.7. After careful review of the record, the Board finds that a compensable rating for ingrown toenails may not be granted. The Veteran's disorder has not manifested functional impairment equivalent to such a rating, as demonstrated by the VA examination reports and medical records. 38 C.F.R. § 4.118, DC 7806. To the extent that the Veteran reported that his toenails were painful, the Board notes that he did not mention any pain or impairment resulting from ingrown toenails to his VA medical providers, despite seeking treatment for other disorders during the appeal period. In sum, the Board finds that a compensable rating for ingrown toenails may not be granted. 5. Entitlement to a compensable rating for headaches The Board finds that the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for headaches. Therefore, the claim may not be granted. The Veteran's service-connected headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100, which provides a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating for migraines with characteristic prostrating attacks averaging one in 2 months over last several months, and a 0 percent rating for less frequent attacks. Turning to the evidence of record, the Veteran denied having frequent headaches during his VA primary care evaluation in January 2014. He likewise did not report any headaches to his primary care clinician in December 2014. The Veteran attended a VA examination in June 2015. He stated that he currently has headaches about once every 1-2 weeks lasting around 1-2 hours, relieved by Tylenol. The headaches were described as constant head pain and pain on both sides of the head, but without non-headache symptoms, lasting less than one day on both sides of the head. The examiner found that the Veteran did not have any characteristic prostrating attacks of migraine or non-migraine headache pain, and that the disorder would not impact his ability to work. In lay statements submitted in December 2016, the Veteran asserted, among other things, that he has terrible headaches that appear multiple hours a day, and that he can't function when they happen. He stated that he believes his headaches began after rocket-propelled grenades burst over his head during combat in May 2011. The Veteran did not report having current headaches, and his clinicians did not document evidence of the same, during primary care appointments in May 2017 and May 2018. The Veteran denied having current headaches during a primary care visit in March 2019 and during a mental health appointment in July 2019. The Veteran attended a VA examination in November 2020. He reported having headaches around twice per week lasting one hour, and taking Tylenol and Advil for his symptoms. The symptoms were described as constant head pain, pain on both sides of the head, sensitivity to light, and sensitivity to sound, with a duration lasting less than one day. The examiner found that the headaches had characteristic prostrating attacks "with less frequent attacks" based on the Veteran's reports that he missed work once every six months due to prostrating headache pain. The Board finds that the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for headaches. The VA examiners in June 2015 and November 2020 documented a level of functional impairment, at its most severe, consistent with a non-compensable rating for headaches based on less frequent prostrating attacks. 38 C.F.R. § 4.124a, DC 8100. VA medical records do not show any reports of headaches or characteristic episodes during the rating period, despite reports of other conditions. The Veteran denied having frequent headaches to his primary care doctors in 2014 and 2019. Indeed, the Veteran's own reports to the examiner in November 2020 suggest that he had prostrating headaches once every 6 months, which does not suggest a level of severity to the extent required for a higher rating. See 38 C.F.R. § 4.2. As such, the Board finds that a compensable rating is not for application. 38 C.F.R. § 4.7. The Board has considered the Veteran's lay statements. However, the Board notes that he did not report having headaches to his VA medical providers during the appeal period, despite seeking treatment for other disorders. See Caluza, 7 Vet. App. at 511. Moreover, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. In sum, as the most probative evidence does not reach the level of equipoise in the claim for a compensable rating for headaches, the claim may not be granted. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.