Citation Nr: 1736571	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  03-29 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for numbness of the hands and fingers (including carpal tunnel syndrome), to include as due to exposure to chemical agent resistant coating (CARC), pyridostigmine bromide (PB), insect poisons, and/or potential low levels of sarin, and/or to include as due to undiagnosed illness.

2. Entitlement to service connection for multiple joint pain (including of the left elbow, cervical and lumbar spine, right shoulder, right elbow, and right ankle), to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin, and/or to include as due to undiagnosed illness, or as secondary to service-connected bilateral knee disorders.

3. Entitlement to a rating in excess of 10 percent for service-connected seborrheic dermatitis.

4. Entitlement to a rating in excess of 10 percent for service-connected residuals of a left knee injury prior to January 7, 2014, and in excess of 30 percent for left knee total arthroplasty residuals from March 1, 2015.

5. Entitlement to a rating in excess of 10 percent for service-connected osteoarthritis of the right knee prior to March 10, 2015, and in excess of 30 percent for right knee total arthroplasty residuals from May 1, 2016.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

R. Janofsky, Associate Counsel


INTRODUCTION

The Veteran had active duty in the Army National Guard from November 1975 to February 1976, from October 1990 to August 1991, and from June 1992 to September 1993, to include service in Southwest Asia during the Persian Gulf War. 

This appeal comes to the Board of Veterans' Appeals (Board) from November 2001 and December 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2005, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A transcript of that hearing is associated with the claims file.

These claims have a long procedural history and have been remanded previously.  Most recently, in August 2014, the Board remanded the service connection claims for numbness of the hands and fingers (to include carpal tunnel syndrome) and multiple joint pain to the RO for additional development.  The RO conducted the requested development, including obtaining the Veteran's outstanding VA treatment records since October 2013 and providing the requested VA medical opinions.  Moreover, in August 2014, the Board remanded the increased rating claims for seborrheic dermatitis, a left knee condition, a right knee condition, a left shoulder condition, and a left ankle condition for a statement of the case (SOC).  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).   In April 2017, the RO issued a statement of the case adjudicating the remanded increased rating claims (except for the increased rating claims for a left shoulder condition and a left ankle condition, as discussed further below).  Thus, the RO substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required.  See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).  

The issues of entitlement to an increased rating for a service-connected left ankle disability and entitlement to an increased rating for a service-connected left shoulder disability were also remanded by the Board to issue a SOC.  However, in his December 2013 notice of disagreement, the Veteran sought a 10 percent rating for his service-connected left ankle disability and a 20 percent rating for his service-connected left shoulder disability.  In an April 2017 rating decision, the RO assigned a 10 percent rating for the left ankle disability effective March 25, 2013, and a 20 percent rating for the left shoulder disability effective March 25, 2013.  As these were complete grants of the benefits sought as to both issues, they were removed from appellate review.

In April 2017, the Veteran perfected his appeal for increased ratings for his knees and dermatitis.  In a September 2014 rating decision, the RO assigned a temporary total evaluation from January 7, 2014 for the Veteran's left knee arthroplasty (previously rated as residuals of a left knee injury) under D.C. 5055.  A left knee evaluation of 30 percent was assigned from March 1, 2015 under D.C. 5055.  In an April 2015 rating decision, the RO granted service connection for a right knee total arthroscopy and assigned a temporary total evaluation from March 10, 2015 for implantation of a prosthesis under D.C. 5055.  An evaluation of 30 percent was assigned from May 1, 2016 under D.C. 5055.  The Board has recharacterized the increased ratings claims for the Veteran's right and left knee conditions of the cover page accordingly.  

The Veteran submitted additional evidence after the February 2017 supplemental statement of the case (SSOC), which adjudicated the service connection claims on appeal, including the carpal tunnel syndrome claim.  As the additional evidence was not pertinent to that claim, the Board may proceed with a decision on that issue.  See 38 C.F.R. § 20.1304.  

In a September 2016 statement and a February 2017 SSOC notice response form, the Veteran contended that his claim for service connection for a pulmonary disorder is still on appeal.  The Board denied claim that claim in an October 2012 decision, which he did not appeal.  

The Veteran's claims for increased ratings for his knees and for service connection for  multiple joint pain following issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  


FINDINGS OF FACT

1. The Veteran's bilateral carpal tunnel syndrome (manifested by numbness of the hands and fingers) is not the result of an injury or disease incurred in or aggravated by active military service, to include exposure to CARC, PB, insect poisons, and/or potential low levels of sarin; and his bilateral hand and finger numbness has been diagnosed as carpal tunnel syndrome based on clinical testing so is not an undiagnosed illness. 

2. The Veteran's seborrheic dermatitis did not cover 20 percent or more of the entire body or exposed body areas, and did not require "systemic" therapy at any point during the period on appeal.


CONCLUSIONS OF LAW

1. The criteria for service connection for service connection for numbness of the hands and fingers (including carpal tunnel syndrome), to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin, and/or to include as due to undiagnosed illness, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2016).

2. The criteria for a rating in excess of 10 percent for service-connected seborrheic dermatitis have not been met. 3 8 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7806 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, supra.  

I. Service Connection for Bilateral Hand and Finger Numbness (including Carpal Tunnel Syndrome)

The Veteran seeks service connection for bilateral carpal tunnel syndrome (claimed as hand and finger numbness).  Specifically, he contends that his current bilateral hand and finger numbness is due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin during his active duty service in Saudi Arabia during the Persian Gulf War from October 1990 to August 1991.  He asserts that his National Guard Unit's assignment painting vehicles using toxic CARC paint and exposure to other toxic substances resulted in his current bilateral hand and finger numbness.  He also asserts that he is entitled to presumptive service connection under the Gulf War undiagnosed illness provisions.

Pertinent regulations for consideration that were provided to the Veteran in the September 2003 statement of the case will not be repeated here.  Additional pertinent regulations that were not previously provided are referenced below.

Initially, the Veteran contends he is entitled to presumptive service connection under the Gulf War presumption for an undiagnosed illness characterized by the neurological symptoms of bilateral hand and finger numbness.  See 38 U.S.C.A. §§ 3.317(a), (b).  However, the Board finds that these presumptive provisions do not apply because these symptoms have been attributed to the known clinical diagnosis of bilateral carpal tunnel syndrome.  See, e.g., July 1998 VA treatment record, EMG results; December 2012 VA examination report.  The Board recognizes the Veteran's representative's assertion in a May 2014 brief, "There is a definitive finding by the VA's examiner that the disorder manifesting in numbness of the hands and fingers is an unknown diagnosis."  It is unclear which of the multiple VA examination reports the representative referenced because no such "definitive finding" is of record, but the Board believes that the representative may be referring to the November 2002 peripheral nerve VA examination finding that the Veteran had subjective complaints of finger and hand numbness with no objective evidence for any pathology.  The Board finds that medical finding is inadequate because it was not based on a full review of the Veteran's medical history, including the July 1998 VA treatment record with EMG results supporting a diagnosis of bilateral carpal tunnel syndrome.  Therefore, the Board affords more weight to the December 2012 VA examination report confirming the diagnosis of bilateral carpal tunnel syndrome, which was based on the July 1998 VA EMG/NCS results.

Nor is the Veteran entitled to service connection on a presumptive basis under the chronic disease presumption, which applies to organic diseases of the nervous system.  See 38 C.F.R. § 3.309(a).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  

For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  Id.  If a condition noted during service is not shown to be chronic then, generally, a showing of "continuity of symptoms" after service is required.  Id.

In this case, there is no contemporaneous evidence of hand or finger numbness during active duty service.  Nor does the evidence show that hand or finger numbness became manifest to a compensable degree within one year of discharge.  Indeed, the first recorded reference to symptoms of hand or finger numbness were in line of duty investigation documents, including the Veteran's sworn statement, from summer and fall 1997, about six years after his period of active duty service ending in August 1991 (when he contends and it is conceded he was exposed to CARC paint and other toxic chemicals), and about four years after his period of active duty service ending in September 1993.  

Moreover, the weight of the evidence is against a finding of continuity of symptomatology since service because the Veteran has made inconsistent statements with varying degrees of specificity regarding the onset and duration of his bilateral hand and finger numbness.  In a June 1997 sworn statement, the Veteran stated that he experienced symptoms including numbness in his fingers and arms "years later since coming back home to the States."  A January 1999 Persian Gulf registry Code Sheet indicates that a physical examination was completed in June 1998 and lists the onset date for his hand numbness as 1997.  He reported to the November 2002 VA examiner that he has had numbness of the fingers and hands "for years."  In his September 2003 substantive appeal, he stated that his health problems generally have deteriorated "since the Gulf War" due to chemical exposure, including from CARC, petroleum products, and insecticides.  He reported during his March 2006 VA peripheral nerves examination that he has had a history of numbness of the hands and fingers for the past one to two years; however, he reported during his March 2006 VA joints examination that the numbness and tingling in his bilateral hands started approximately six months after he returned from Desert Storm.  During the 2005 hearing, the Veteran stated that he "really can't tell...exactly when" this symptom began because it comes and goes; however, later in the hearing, he testified that he started having these problems "right after Desert Storm."  He reported to the October 2011 VA examiner that the onset of his hand numbness was in 1990, that he began having numbness in both hands and fingers in Saudi Arabia after painting vehicles with CARC paint, and that his symptoms have persisted.  He also reported to the December 2012 VA examiner that he began to have hand and finger numbness and mild pain for "several years."  In summary, the Board does not find the Veteran's inconsistent and often vague statements regarding continuity of symptomatology since service to be credible.  

In a service connection claim form filed in December 1993, a few months after his period of active duty ending in September 1993, he brought claims for a lung disease and a facial skin rash, both of which he attributed to Gulf War toxic chemical exposure (including CARC paint); notably, he did not file a claim for bilateral hand or finger numbness at that time.  Moreover, in a September 1995 Gulf War medical examination, he reported left foot numbness, but not hand or finger numbness.  Likewise, during a January 1998 periodic examination, he reported memory problems that he attributed to "Desert Storm," but not hand or finger numbness.  Had he in fact been experiencing hand and finger numbness since his period of active duty service ending in August 1991, it is reasonable to expect that he would have reported such symptoms at those times.  The fact that he did not weighs heavily against any claims he makes now of continuous symptoms since service.

Nor is the Veteran entitled to service connection on a direct basis.  Initially, the Veteran has been diagnosed with bilateral carpal tunnel syndrome, so a current disability is not at issue.  See, e.g., July 1998 VA treatment record, EMG results.  Moreover, the Board concedes in-service exposure to toxic chemicals, to include CARC paint, petroleum, and insecticides, during his period of active duty service from October 1990 to August 1991 in Saudi Arabia during the Persian Gulf War.  See September 1994 National Guard Memorandum (confirming the Veteran's unit's exposure to dangerous levels of an ingredient in CARC paint without proper protective equipment while serving during Operation Desert Storm in Southwest Asia); June 1997 statement of medical examination and duty status (finding CARC toxic exposure, delayed organophosphate toxicity, probable petroleum toxic exposure incurred in the line of duty from October 1990 to August 1991); October 1997 report of investigation (finding injuries incurred in line of duty from October 1990 to August 1991 in Saudi Arabia due to CARC exposure, burning oil fires, insect replants, and insecticides).  

This case hinges on the issue of nexus.  After a full review of the record, the Board finds that the claim must be denied because the most competent and persuasive medical evidence of record establishes that his carpal tunnel syndrome is not related to the conceded toxic chemical exposure in service.

The Veteran was afforded a VA medical opinion in October 2014.  After reviewing the Veteran's claims file, including the Board's August 2014 remand, the Department of Defense's 2000 Environmental Exposure Report regarding CARC ("Department of Defense Report" or "Report"), and a positive, 1997 positive opinion by Dr. R.J.P., the VA examiner competently and persuasively found that it was not likely that the Veteran's currently diagnosed carpal tunnel syndrome is due to his exposure to CARC paint or other chemicals or toxins during active service.  The examiner explained that the injury caused by CARC exposure or other chemicals or toxins during active duty, as addressed in the Report, is very different from carpal tunnel syndrome.  The examiner further explained that exposure to toxins may cause central nervous system damage or peripheral neuropathy, but carpal tunnel syndrome is not due to central nervous system damage and is not a disease caused by toxic neuropathy; rather, carpal tunnel syndrome is entirely due to pressure on median nerve inside the carpal tunnel of the wrist.  The examiner reasoned that carpal tunnel syndrome is an anatomic problem and has nothing to do with paint exposure.  Moreover, the examiner explained that carpal tunnel syndrome can be reversed with release surgery; in contrast, any toxic neuropathy cannot be so treated.  The examiner also considered Dr. R.B.P.'s 1997 positive opinion, but found it was invalid in light of these facts.

The Board finds the October 2014 VA medical opinion to be of great probative value.  The examiner's conclusions were supported by medical rationales and were consistent with the verifiable facts regarding the Veteran's condition.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion).  Indeed, the examiner thoroughly reviewed the Veteran's pertinent medical history and claims file, including the 2000 Department of Defense Report and Dr. R.J.P.'s 1997 positive opinion.  The examiner competently and persuasively explained in detail why the Veteran's diagnosed condition of bilateral carpal tunnel syndrome was distinct from neurological conditions related to CARC and other toxic chemical exposure.

The Board recognizes the March 2006 VA peripheral nerves examination report finding that the Veteran's subjective numbness of the fingers "could be" secondary to exposure to chemicals during the Gulf War, and finding that it was at least as likely as not that this condition was secondary to Gulf War exposure.  However, the Board finds that this opinion was speculative ("could be") and conclusory, as it was unsupported by a medical rationale.  In contrast, the October 2014 VA medical opinion provided a detailed medical rationale and comprehensively considered the medical evidence of record, including conflicting medical evidence regarding etiology.  Therefore, the Board affords more weight to the negative October 2014 VA medical opinion.  

The Board recognizes Dr. R.B.P.'s positive, 1997 medical opinion completed as part of the Comprehensive Clinical Evaluation Program (CCEP) for Persian Gulf War veterans and a line of duty investigation.  Dr. R.B.P. opined that it was "far more likely than not that the majority of diagnoses made during the CCEP process for this soldier can be attributed to his service during the Persian Gulf War."  He also opined that was more likely than not that the Veteran's illness was the result of Persian Gulf War service because "[t]he weight of scientific evidence supports this conclusion."  Specifically, diagnoses noted in the report included multiple types of poisoning, including from CARC paint and fuels, as well as organophosphate induced delayed neuropathy/polyneuropathy.  Throughout the report, the doctor discussed the Veteran's unit's exposure to toxic chemicals during the Persian Gulf War generally, as well as possible effects of such exposure on the peripheral and central nervous system; however, he failed to apply these general principles to the facts of the Veteran's specific case.  For example, although the report generally discussed why soldiers in the Veteran's unit did not become "acutely" ill and that a majority of soldiers were discharged prior to the onset of subtle symptoms, the doctor did not apply these general observations to the specific facts of the Veteran's case, namely the onset of his bilateral hand numbness.  Likewise, although the doctor stated that the health of soldiers in the Veteran's unit had "changed drastically" since their pre-deployment physical examinations, and suggested that such changes were due to chemical exposure during the Gulf War, the doctor did not specifically explain why this was so in the Veteran's specific case, or as applied to his particular symptom of bilateral hand numbness.  Moreover, the doctor stated generally that exposure to CARC paint and other chemical agents have the ability to affect the peripheral and central nervous system, and that toxic exposure explains the causes of vague or confusing CCEP diagnoses related to the peripheral and central nervous systems, such as various neuropathies; however, he failed to explain how, in this case, the Veteran's symptom of bilateral hand numbness constituted such a peripheral or central nervous system condition that was related to such exposure (again, he has been diagnosed with carpal tunnel syndrome per diagnostic testing and not a "vague" neuropathy).  In contrast, the negative October 2014 VA medical opinion directly addressed the nature of the Veteran's specific medical condition and symptoms, how they were distinct from the neurological conditions referenced in Dr. R.J.P.'s 1997 opinion and the Department of Defense Report, and why the Veteran's specific condition, carpal tunnel syndrome (manifested as bilateral hand numbness), was not related to his in-service toxic chemical exposure.  In summary, the Board affords more weight to the negative October 2014 VA medical opinion.

The Board also acknowledges the October 1997 report of investigation finding that various injuries, including hand numbness, were incurred in the line of duty from October 1990 to August 1991 in Saudi Arabia due to CARC exposure, burning oil fires, insect replants, and insecticides.  Specifically, an attached addendum to Block 9.g. of that report by investigating officer P.J.C. discussed the circumstances of the Veteran's and his unit's exposure to toxic chemicals, including CARC, beginning in October 1990 during service in Saudi Arabia.  In support of his finding that the Veteran's finger and arm numbness were incurred in the line of duty, the officer found in part that, while in Saudi Arabia, the Veteran began to develop numbness of the fingers, arms, and legs.  The officer further found that, since his return from the Gulf, the Veteran's health has deteriorated.  The officer explained that these findings were based on "soldier statements, interviews and medical support documentation."  To the extent that this document suggests a nexus between the Veteran's current carpal tunnel syndrome and service, the Board affords more weight to the October 2014 VA medical opinion.  Indeed, the October 2014 VA medical opinion was supported by a thorough medical rationale and a comprehensive review of the Veteran's claims file.  In contrast, this report does not indicate that the investigating officer was a medical professional who was competent to suggest a relationship between the Veteran's exposure to toxic chemicals during service and his current health condition.  To the extent that the investigating officer's findings were based on Dr. R.J.P.'s 1997 report, the Board affords it no probative value for the reasons discussed above.  To the extent that these findings were based on the Veteran's reports of in-service finger and arm numbness, the Board does not find such statements credible for the reasons discussed above.  

The Board also has considered the multiple articles that the Veteran submitted that generally discussed the Veteran's unit's (conceded) exposure to toxic chemicals, including CARC paint, during the Persian Gulf War, as well as Gulf War undiagnosed illnesses and the applicable presumptive provisions.  While some of these articles generally addressed the possible health effects of exposure to toxic chemicals such as CARC paint (including such effects suffered by others in his unit), they did not address the specific facts of the Veteran's case, and therefore do not establish a nexus.  Furthermore, the articles generally discussing presumptive service connection for Persian Gulf War undiagnosed illnesses do not apply here because, as discussed above, the Veteran's bilateral hand numbness has been clinically diagnosed with bilateral carpal tunnel syndrome.  

The Board also acknowledges the Material Data Safety Sheet, which addressed CARC health hazard data generally, including a reference to reports associating repeated and prolonged occupational overexposure to solvents with permanent brain and nervous system damage.  Moreover, the Department of Defense Report generally discussed the Veteran's unit's exposure to CARC paint during its deployment to Saudi Arabia during the Persian Gulf War.  The Report also generally discussed possible central nervous system effects of exposure to CARC solvents.  Specifically, it stated that brief exposures during an eight-hour shift generally had transient central nervous system effects that resolved rapidly after cessation of exposure; however, the Report also stated that long-term exposure to CARC solvents after about ten years of relatively heavy exposure has been associated with increased rates of chronic central nervous system symptoms.  The Board affords more weight to the October 2014 VA examiner's negative nexus opinion than to the Material Data Safety Sheet and the Report.  Unlike these documents, the October 2014 VA opinion applied objective medical principles to the specific facts of the Veteran's case.  Indeed, even after considering the Department of Defense Report and Dr. R.B.P.'s 1997 opinion, the examiner competently and persuasively explained that the Veteran's carpal tunnel syndrome is not a disease caused by toxic neuropathy or central nervous system damage, but rather an anatomic problem that has nothing to do with paint exposure.  

The Board considered the Veteran's contention that his current bilateral carpal tunnel syndrome manifested by hand and finger numbness is due to exposure to toxic chemicals, including CARC paint, fuel, and insecticides, during his active duty service in Saudi Arabia during the Persian Gulf War.  However, the Veteran is not competent to opine regarding the etiology of this complex condition.  See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board affords more weight to the October 2014 VA examiner's competent, negative nexus opinion.

In summary, the necessary legal element of a causal relationship between the Veteran's bilateral carpal tunnel syndrome (manifested as hand and finger numbness) and service are absent in this case.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The Board finds that the Veteran's bilateral carpal tunnel syndrome is not etiologically related to his active duty service, to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin.  Accordingly, service connection for this condition is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against this claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Increased Rating for Seborrheic Dermatitis

The Veteran's service-connected seborrheic dermatitis has been assigned a 10 percent rating from December 21, 1993 under Diagnostic Code (DC) 7806.  38 C.F.R. § 4.118.  He seeks a higher rating.  Specifically, in his December 2013 notice of disagreement, he asserted that he was entitled to a 30 percent rating.  

Pertinent regulations for consideration were provided to the Veteran in the April 2017 statement of the case and will not be repeated here.  Additional pertinent authorities that were not previously provided are referenced below.

In Johnson v. Shulkin, 2017 U.S. App. LEXIS 12601, 862 F.3d 1351, 2017 WL 2989492 (Fed. Cir. July 14, 2017), at issue on appeal was whether criteria for a 60 percent rating under Diagnostic Code 7806, which requires "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs (emphasis added)," is inclusive of topical corticosteroids.  In the proceedings below, the Veterans Court read the phrase "systemic therapy such as corticosteroids" as unambiguously encompassing any topical application of corticosteroids for treating a skin condition, in addition to a therapy that impacts a patient's entire body system, such as when a drug is administered orally or parenterally.  The Veterans Court found that the "topical therapy" identified in the noncompensable rating criteria necessarily referred to "non-corticosteroid" topical treatment.  As such, the Court reversed the Board's holding, and found that Appellant's therapy was "systemic."  

The U.S. Court of Appeals for the Federal Circuit agreed with the Secretary that the Veterans Court erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'"  Johnson, supra at *1-2.  The Federal Circuit noted that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code."  Id. at *8.  The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied (emphasis added)."  Id. at *9.  The Federal Circuit noted that, although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy.  Id. at *10.  The Federal Circuit agreed with the Secretary that the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.  Id. at *11.

For the reasons discussed below, the Veteran's skin disability did not cover more than 20 percent of the entire or exposed body areas, and did not require "systemic" therapy to control, at any point during the period on appeal.  Therefore, a higher rating is unwarranted.

The Veteran was afforded a VA dermatological examination in November 2013.  The Veteran described his skin condition as a rash on his scalp and face.  Upon physical examination, the examiner described the skin condition as a small area of hypopigmented rash on scalp and around the beard.  The examiner noted that the Veteran's seborrheic dermatitis covered a total body area of less than five percent and a total exposed body area (face, neck and hands) of less than five percent.  Regarding treatment, the examiner found that the Veteran had been treated with oral or topical medications in the past twelve months.  Specifically, the examiner noted that the Veteran was treated with the topical corticosteroids lidex for dermatitis constantly/near constantly in the past twelve months.  The examiner also found that the Veteran used the other topical medication of ketoconazole shampoo constantly/near constantly in the past twelve months.

The Veteran was afforded another VA dermatological examination in March 2017.  The Veteran described his skin condition as a history of itchy and irritating skin changes on the face and low back.  He reported that medicated creams had been used with fairly good effect.  Upon physical examination, the examiner described the skin condition as discolored, patchy, light demarcated areas on the face and lower back.  The examiner noted that the Veteran's dermatitis covered a total body area of less than five percent and a total exposed body area (face, neck and hands) of less than five percent.  Regarding treatment for seborrheic dermatitis, the examiner found that the Veteran had been treated with oral or topical medications in the past twelve months.  The examiner noted the Veteran's constant/near constant use in the past twelve months of the oral medication Minocycline.  Moreover, the examiner noted the Veteran's use for less than six weeks in the past twelve months of the topical corticosteroids, fluocinolone cream and desonide cream.  Under "[o]ther topical medications," the examiner noted the Veteran's constant/near constant use in the past twelve months of tacrolimus cream.

The Veteran underwent ongoing VA dermatological treatment for his seborrheic dermatitis during the appeals period.  The VA treatment records generally mirrored the findings of the 2013 and 2017 VA examination reports.  For example, they showed the use of topical and oral skin prescriptions to treat the areas affected by skin flare-ups, including the topical medication hydrocortisone cream (a corticosteroid).  The Veteran's various topical skin medications were prescribed for application to distinct affected areas, including the face and scalp.  

After a full review of the record, the Board finds that a higher rating is not warranted under DC 7806.  The medical evidence of record shows that the Veteran's seborrheic dermatitis did not cover more than 20 percent of the entire or exposed body areas.  Nor did the Veteran's seborrheic dermatitis require "systemic" therapy as interpreted by the Federal Circuit in Johnson at any point during the period on appeal.

The Board affords great probative value to the 2013 and 2017 VA examination reports.  Indeed, the examiners addressed the Veteran's pertinent medical history, conducted thorough clinical evaluations, and competently made pertinent medical findings addressing all relevant rating criteria regarding the nature and severity of the Veteran's skin condition.  

The Board acknowledges that the November 2013 VA examiner found that the Veteran used the topical corticosteroid Lidex constantly/near constantly in the past twelve months.  The Board also recognizes that the March 2017 VA examination report found that the Veteran used the topical medication tacrolimus cream, an immunosuppressant, "constantly/near constantly" in the past twelve months.  See https://www.drugs.com/cdi/tacrolimus-ointment.html.  Moreover, the Board recognizes that VA treatment records show that the Veteran was prescribed the topical corticosteroid hydrocortisone.  See https://medlineplus.gov/druginfo/meds/a682793.html.  However, there is no evidence that the Veteran was directed to apply these topical medications - 
prescribed to treat skin flare-ups of the face, scalp, and low back - beyond these discrete, affected areas or to the whole body.  Indeed, various VA dermatology treatment and prescription records clearly show that the Veteran's various topical skin medications were prescribed for application to dermatitis flares in discrete, affected areas, including the scalp and face.  See, e.g., April 2015 VA dermatology outpatient note; June 2016 VA dermatology clinic note; September 2015 endocrinology consult note (active outpatient medication list showing hydrocortisone cream to be applied to affected area on skin twice a day as needed, face/intertriginous areas); March 2017 dermatology clinic note (assessment/plan directing application of tacrolimus ointment to scaly areas on face, and application of fluocinolone scalp oil for flares only to the lesions).  Therefore, although the Veteran was treated with topical immunosuppressive medication and topical corticosteroids for his skin condition constantly or near constantly during the past twelve month period, this did not constitute "systemic therapy" as contemplated by the criteria for a 30 or 60 percent rating under DC 7806 and Johnson. 

The Board also acknowledges that the March 2017 VA examination report noted that the Veteran had been treated with the topical corticosteroids of fluocinolone cream and desonide cream.  However, such treatment was for less than six weeks in the past twelve months, and thus, insufficiently frequent for a 30 percent rating under DC 7806.  Nor is there any evidence that such topical medications were applied beyond the discrete, affected areas noted in the VA treatment records and on the 2017 examination report (including the head, face, and lower back); therefore, such therapy was not "systemic" as contemplated by the criteria for a 30 percent rating under DC 7806 for the same reasons discussed above.  See Johnson, supra.  

Moreover, the Board observes that the March 2017 VA examination report noted that the Veteran had been treated with the oral medication Minocycline for his seborrheic dermatitis constantly/near constantly in the past twelve months.  However, Minocycline is not a corticosteroid or other immunosuppressive drug as contemplated by the criteria for a 30 percent rating under DC 7806.  Rather, it is an antibiotic that was prescribed to treat the Veteran's skin infection.  See, e.g. April 2015 VA treatment record; see also https://www.drugs.com/minocycline.html.  Furthermore, VA dermatology treatment records clearly show that Minocycline was prescribed to treat flares of discrete areas, including the face and scalp.  See, e.g., April 2015 VA dermatology outpatient note (face); November 2015 dermatology clinic note (scalp).  Therefore, this medication did not constitute "systemic therapy such as corticosteroids or other immunosuppressive drugs" as contemplated by the criteria for a 30 or 60 percent rating under DC 7806.

The Board has considered whether a rating for disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805) is warranted, but finds that ratings under these Diagnostic Codes are not appropriate in this case.  See DC 7806.  Indeed, both the November 2013 and March 2017 VA examiners competently reported that the Veteran's skin conditions did not cause scarring or disfigurement of the head, face, or neck.  Photographs accompanying the March 2017 VA examination report support these findings.  

The Board acknowledges the Veteran's lay statements of record asserting that his skin condition has worsened and warrants a higher rating of at least 30 percent, including his December 2013 notice of disagreement and April 2017 substantive appeal.  While the Veteran is competent to report his dermatological symptoms such as rashes and irritation, as well as his skin treatment, he is not competent to make the requisite clinical findings under the relevant rating criteria, such as the area of his skin symptoms or whether his therapy is "systemic."  See 38 C.F.R. § 4.118, DC 7806.  Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although the Veteran contends that his skin condition warrants at least a 30 percent rating, it is ultimately VA adjudicators' role to apply relevant regulations and assign disability ratings.  In summary, the Board finds the objective, competent medical evidence discussed above - specifically the VA examination reports and contemporaneous VA treatment records - more probative than the Veteran's lay statements in establishing his specific level of symptomatology and impairment under DC 7806.  

In conclusion, the weight of the most probative evidence is against the claim of entitlement to a rating in excess of 10 percent for the Veteran's service-connected seborrheic dermatitis.  The benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. at 53-56.  The claim for an evaluation in excess of 10 percent for seborrheic dermatitis is denied.

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

III. Duties to Notify and Assist

In his April 2017 substantive appeal of the increased rating claim, the Veteran suggested that his skin condition has worsened.  Specifically, he stated that his VA doctor tried her best to help improve his seborrheic dermatitis, but nothing seemed to help.  He also stated that he thinks that the condition is spreading.  The Board finds that the most recent, March 2017 VA dermatology examination adequately addressed the current nature and severity of the Veteran's service-connected skin condition.  Indeed, it involved a review of the Veteran's pertinent medical history as well as a thorough clinical evaluation of the Veteran.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Veteran did not reference any specific medical evidence to support his contention regarding the worsening of his skin condition since the March 2017 VA examination.  The VA treatment note he submitted with his appeal actually pre-dated the March 2017 VA examination, so there is no suggestion his condition has worsened since the examination was done. Accordingly, the Board finds that there is no duty to provide another examination or medical opinion to assess the current nature and severity of his skin condition, and no further development of this claim is required.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing.  As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010).  See Dickens, supra.


ORDER

Service connection for service connection for numbness of the hands and fingers (including carpal tunnel syndrome), to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin, and/or to include as due to undiagnosed illness, is denied.

Entitlement to a disability rating greater than 10 percent for seborrheic dermatitis is denied.


REMAND

The Board sincerely regrets this further delay, but the Board finds that the duty to assist has not been satisfied as to the development of the remaining claims.  

Pursuant to the August 2014 remand, the RO obtained the Veteran's outstanding VA treatment records since October 2013.  Those records revealed the existence of outstanding private treatment records pertinent to the remanded claims from private providers compensated by VA through the Veterans Choice Program.  Specifically, recent VA treatment records referencing the Veterans Choice Program identify at least one private provider, physical therapist I.N., paid for by VA through this program.  Those VA treatment records also indicated that the Veteran applied for and underwent private physical therapy through this program for "all over joint pain," low back pain, shoulder pain, and knee pain.  

 "VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from...private medical care providers...and other non-Federal governmental sources."  38 C.F.R. § 3.159(c)(1).  "The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians.  The claimant must provide enough information to identify and locate the existing records...."  Id. §  3.159(c)(1)(i).  "If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records."  Id. § 3.159(c)(1)(ii).  

In this case, VA had actual notice of the existence of outstanding private treatment records that are pertinent to the remanded issues, but the RO failed to request a release from the Veteran to attempt to obtain these records.  Therefore, these issues must be remanded for the RO to ask the Veteran to identify all outstanding, pertinent private treatment records (through the Veterans Choice Program or otherwise), and request the releases necessary to obtain these records.  

The Veteran and his representative are advised that they must identify all private providers and provide corresponding releases if they want VA to attempt to obtain these records.  VA has no authority to obtain records from private providers without his written consent, even if the treatment in question is being paid for by VA through the Veterans Choice Program.

Finally, all outstanding VA treatment records should be associated with the claims file upon remand.

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's VA medical records from the Tampa VAMC (and all associated outpatient clinics) from March 2017 to the present.

2. Ask the Veteran to complete releases authorizing VA to obtain any medical records from private providers (through the Veterans Choice Program or otherwise) that are relevant to his claims for: (1) service connection for multiple joint pain (to include left elbow, cervical and lumbar spine, right shoulder, right elbow, and right ankle pain); (2) increased rating for residuals of a left knee injury and left knee total arthroscopy; and (3) increased rating for right knee osteoarthritis and right knee total arthroscopy.

3. After completing the above and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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