Citation Nr: 1749051	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  00-18 696A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for right hand/arm carpal tunnel syndrome (CTS), including due to undiagnosed illness.

2.  Entitlement to service connection for a left arm disorder, including due to undiagnosed illness.

3.  Entitlement to an initial rating higher than 30 percent prior to February 8, 2007, for seborrheic dermatitis with post-inflammatory pigmentary alteration.

4.  Entitlement to an extra-schedular rating for this service-connected skin disorder.

5.  Entitlement to an extra-schedular rating for a low back disability, involving degenerative joint disease, i.e., arthritis as a residual of an injury.


(Additional claims of entitlement to service connection for sinus problems with headaches, fatigue, blurred vision with a history of cataracts, bowel problems, kidney problems, muscle aches of the upper body, a bilateral ankle disorder, a bilateral hip disorder, a bilateral knee disorder, and sleep apnea will be addressed in a separate future decision.)


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran served on active duty from August 1987 to August 1990 and from November 1990 to June 1991, including in the Southwest Asia Theater of Operations from January to May 1991 in support of Operation Desert Storm/Desert Shield.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).


In a May 2010 decision, the Board, in relevant part, denied the claims of entitlement to service connection for right hand/arm CTS and for a left arm condition.  However, the Board increased the rating for the Veteran's skin disorder from 10 to 30 percent for the initial period at issue, that being prior to February 8, 2007, but denied a rating higher than 60 percent for this skin disorder since February 8, 2007.  The Board also denied the claim for a rating higher than 20 percent for his low back disability.  He appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).

In a February 2012 single-judge memorandum decision, the Court vacated the Board's May 2010 decision denying the claims of entitlement to service connection for right hand/arm CTS and a left arm condition.  The Court also vacated the Board's decision denying an initial rating higher than 30 percent for the Veteran's skin disorder, as well as the portion of the Board's decision finding that extra-schedular consideration was unwarranted concerning the ratings for this skin disorder and low back disability.  The Court remanded these claims to the Board for further proceedings consistent with its decision.  The Court, however, affirmed the Board's decision to the extent it had denied a schedular rating higher than 20 percent for the low back disability.

In a March 2013 decision since issued, the Board remanded the Veteran's claims for service connection for right hand/arm CTS and a left arm condition, and denied his remaining claims for an initial rating higher than 30 percent for his skin disorder prior to February 8, 2007, an extra-schedular rating for this skin disorder, and an extra-schedular rating for the low back disability.  He again appealed to the Court.

After granting a Joint Motion for Remand (JMR) filed by the parties, the Court remanded those decided claims back to the Board and they, in turn, again were remanded to the Agency of Original Jurisdiction (AOJ) in July 2014.  

In a January 2016 decision since issued, the Board again remanded the Veteran's claims for service connection for right hand/arm CTS and a left arm condition, and continued to deny his remaining claims for an initial rating higher than 30 percent for his skin disorder prior to February 8, 2007, an extra-schedular rating for this skin disorder, and an extra-schedular rating for the low back disability.  He again appealed to the Court.  

After granting a Joint Motion for Partial Remand (JMPR) in November 2016 filed by the parties, the Court remanded those decided claims back to the Board.  All the claims since have been returned to the Board for further appellate consideration.  Although the service connection issues have not specifically been recertified to the Board, the Board's most recent remand directives were accomplished in March 2016.  A letter to the Veteran dated that same month shows that his previously remanded appeal had been returned to the Board.  Moreover, as the Board is granting service connection for one of those issues, and is remanding the other, the Veteran is not prejudiced by the Board reviewing these claims.  

Regrettably, the claims of entitlement to service connection for right hand/arm CTS and for extra-schedular ratings for the skin and low back disabilities require further development before being decided on appeal.  So the Board is remanding these claims to the AOJ, though adjudicating the remaining others.

Note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's left wrist arthritis is as likely as not the result of his military service.

2.  The Board's May 19, 2010 decision increased the initial rating for the Veteran's skin disorder from 10 to 30 percent for the initial period in dispute, prior to February 8, 2007, and the Appeals Management Center (AMC) subsequently issued a decision in November 2010 effectuating the grant of the higher rating for this service-connected disability; this higher 30 percent rating was made retroactively effective from April 24, 1997, so back to the date of receipt of this claim.

3.  During this initial period at issue prior to February 8, 2007, this service-connected skin disorder was manifested by constant itching and extensive exfoliation--albeit without ulceration, crusting, or systemic or nervous manifestations; it was not exceptionally repugnant and involved at most 6 percent of the Veteran's total body surface.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for his left wrist arthritis.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).

2.  But the criteria are not met for an initial rating higher than 30 percent for the skin disorder prior to February 8, 2007.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.1-4.14, 4.118, Diagnostic Codes 7800, 7806 (effective prior to and since August 30, 2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance upon receipt of a complete or substantially complete application for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).


To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159 (b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002).

These VCAA notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

As the Board is granting service connection for the Veteran's left wrist arthritis, thus resolving this issue on appeal in full, no discussion of VA's duties to notify and assist with respect to this issue is necessary.  

As specifically concerning the claim for a higher rating for the skin disorder, this claim arises from the initial rating the RO assigned after granting service connection for this disability.  In this circumstance, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and Veterans Court (CAVC) have held that, where the underlying claim for service connection has been granted and there is disagreement regarding a "downstream" issue, such as an initial rating assigned for the disability, the claim as it arose in its initial context has been substantiated, so the purpose of § 5103(a) notice served, and there is no need to provide additional VCAA notice concerning the "downstream" rating issue.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case (SOC) if the disagreement concerning the "downstream" issue is not resolved.  Since the RO provided the Veteran this required SOC citing the statutes and regulations governing the assignment of disability ratings (including, as here, an initial disability rating) and discussing the reasons and bases for not assigning a higher initial rating, he has received all required notice concerning this claim.

There is no pleading or allegation that the Veteran has not received all required notice concerning this initial rating claim.  There was no mention of this in the Court's February 2012 single-judge memorandum decision, the parties' October 2013 JMR and November 2016 JMPR, or in the argument the Veteran's attorney has submitted during the claims period.  And as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing a VCAA notice error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  Thus, absent this pleading or showing, the Board finds that the duty to notify him concerning his claim has been satisfied.

VA also fulfilled its duty to assist the Veteran by obtaining all potentially relevant evidence in support of this claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO and AMC obtained all pertinent records that he and his representative identified as possibly relevant to this claim.  These records include VA and private treatment records, as well as records pertaining to his award of Social Security Administration (SSA) benefits.  38 C.F.R. § 3.159(c)(1) and (c)(2).  See also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); and Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  See, too, Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (clarifying that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim).  In addition, the Veteran was provided several VA compensation examinations assessing and reassessing the severity of his service-connected skin disability.  The findings from these examinations provide the information needed to properly rate this disability.  38 C.F.R. §§ 3.327, 4.2.  See also Caffrey v. Brown, 6 Vet. App. 377 (1994).  The Board is not obligated to remand a claim merely because of the passage of time since an otherwise adequate VA examination, so not just as a simple matter of course.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

Given all that has occurred, at least as concerning this initial rating claim being readjudicated in this decision, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate this claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran).

The Board also finds there has been the required compliance with the Board's prior remand directives.  In response to the Board's July 2014 remand (and the parties' October 2013 JMR), the Veteran's claims file was rebuilt and now includes service treatment records (STRs), SSA records, the transcript of the May 2000 hearing, complete records of treatment from various VA facilities, and copies of VA examination reports dated prior to 2011.  This evidence was previously of record and considered by the AOJ in its earlier adjudications of the claim.  In addition, the Veteran was contacted in March 2015 and asked to submit any evidence in his personal possession relating to his claim for greater compensation.  The record also contains other evidence that was added to the claims file since the July 2014 remand, such as more recent VA treatment records and medical opinions, but this evidence pertains to the Veteran's other claims that also are on appeal (which will addressed in a future separate Board decision).  Therefore, readjudication of the claim for an increased rating for the skin disorder was not required by the AOJ.  See 38 C.F.R. § 19.31(c)(1) (The AOJ will issue a supplemental SOC (SSOC) pursuant to a remand from the Board unless the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior SOC or SSOC). 

The Veteran also had a Travel Board hearing before the undersigned VLJ in August 2009.  According to 38 C.F.R. § 3.103(c)(2) (2017), it is the responsibility of the presiding hearing officer or judge to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked and that would be potentially advantageous to his position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court/CAVC held that the hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

Here, to this end, the undersigned identified the issues on appeal.  Also during the course of the hearing this presiding VLJ engaged in a discussion of evidence that would be relevant to the appeal.  Moreover, the Veteran did not raise any new issues pertaining to these claims during the course of the hearing that have not been addressed.  See Bryant, 23 Vet. App. at 497-98.  Also, in the questioning and responses, the Veteran evidenced his actual knowledge of the type of evidence and information needed to substantiate the claims.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).  Thus, the Board finds that the presiding judge's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claims and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied.  See id. at 496-97.  

The Veteran and his representative have not alleged there were any deficiencies in the conducting of that hearing related to the presiding VLJ's duties under § 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  Moreover, the Veteran and his representative have not argued that any error or deficiency in the notice or assistance received concerning these claims was unduly prejudicial, meaning outcome determinative of these claims.  See Shinseki, 129 S.Ct.1696. 

For these reasons and bases, the Board finds that VA has complied with its duties to notify and assist the Veteran with these claims, in turn allowing the Board to proceed with their readjudication.


II.  Service Connection for a Left Arm Condition

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology since service.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  These chronic diseases (so, again, arthritis included) also may be presumptively service connected if they become manifest to a compensable degree (meaning to a degree of 10 percent or more) within one year of leaving qualifying military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3); 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence such as actual treatment records).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2).  In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Consider also, however, that a Veteran is not competent to provide probative opinion on more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Turning now to the relevant facts, the Veteran's STRs include his March 1987 enlistment examination revealing clinically normal upper extremities.  In his enlistment report of medical history, he denied swollen or painful joints; arthritis, rheumatism, or bursitis; and bone, joint or other deformity.  A July 1988 record shows that the Veteran complained of left wrist pain.  He was diagnosed with a questionable ligament/muscle strain.  An October 1988 record reveals a diagnosis of a left arm muscle sprain.  A June 1990 examination, as well as a May 1991 redeployment examination, both revealed clinically normal upper extremities.  In his redeployment report of medical history, he answered yes to swollen or painful joints, but denied arthritis, rheumatism, or bursitis; and bone, joint or other deformity.  His military service ended in June 1991.

Post-service treatment records include an October 2006 record in which the Veteran reported a long-standing history of upper extremity pain, while a December 2006 record reveals that the Veteran was vague about the duration of symptoms.   

As already alluded to, the Board remanded this claim in March 2013 for further development.  That is, the Board requested an examination with a nexus opinion as to whether a left arm condition is related to the Veteran's military service.

The Veteran was provided with this requested VA compensation examination in March 2014.  Pertinently, he was diagnosed with minimal arthritis of the left wrist.  The examiner opined that the claimed condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness.  The examiner opined that without the STR, they could not fully say that the condition was not related to his wrist.  The examiner reported that the Veteran did not give a history of an injury to his wrist.  The examiner opined that it was less likely than not that his minimal arthritis of the left wrist was due to his military service.  

An addendum opinion was obtained from the March 2014 examiner in January 2015.  The examiner noted that the Veteran's claims file had been reviewed.  The examiner opined that after reviewing the electronic record, they could find nothing to change the opinion rendered in March 2014.  The examiner noted that there were no STRs in the file again and no medical records available for review.

A second addendum opinion was obtained from this same examiner in March 2015.  The examiner opined that the Veteran's left wrist condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness.  The examiner noted that there were notes in the STRs on several occasions for treatment of left wrist sprains.  They reported that the Veteran stated that he had had intermittent pain in the wrist since that time, which had progressed to a continuous pain.  The examiner opined that the abnormal stresses placed on the cartilage of the wrist joint by spasm secondary to the pain had caused the condition to progress to arthritis over the years.  The examiner concluded that it was at least as likely as not that the arthritis of the wrist was due to his military service.  

When considering this collective body of evidence, the Board concludes that service connection for left wrist arthritis is warranted.  In granting service connection, although the evidence has shown a diagnosis of bilateral CTS, statements from the Veteran's representative have indicated that service connection for arthritis was being sought.  See, e.g., September 2016 Written Brief Presentation.  As such, the Board considers this to be a full grant of the Veteran's left arm claim.  

The Veteran's STRs show left arm/wrist complaints; post-service treatment records show a current diagnosis of arthritis; and the March 2015 opinion from the 2014 examiner supports a finding of a nexus.  Therefore when affording him the benefit-of-the-doubt, the evidence supports finding that his currently diagnosed left wrist arthritis is related to or the result of his military service.  38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).

As discussed above, STRs in 1988 reflected arm and wrist complaints.  At the 2014 examination, minimal arthritis was diagnosed.  While the examiner initially provided a negative opinion, such did not include a review of all available medical evidence as noted by the examiner.  After the examiner had the opportunity to review the pertinent evidence, they provided a positive opinion supported by a thorough rationale that addressed the STRs as well as the Veteran's own lay statements.  As such, the Board accords the March 2015 positive opinion a lot of probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that, to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation).  Consequently, service connection for left wrist arthritis is granted.


III.  Higher Initial Rating for the Skin Disorder Involving Seborrheic Dermatitis with Post-Inflammatory Pigmentary Alteration

By way of history, in April 1997 the Veteran filed a claim for service connection for a rash on his back, shoulders, and neck.  In August 1999, the RO granted service connection for this condition and assigned an initial 10 percent rating retroactively effective from April 24, 1997, the date of receipt of this claim.  The Veteran appealed for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (holding that, when a Veteran timely appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal).

During the pendency of this appeal, the Veteran's rash was recharacterized as seborrheic dermatitis with post-inflammatory pigmentary alteration.  Moreover, in an October 2008 rating decision, the RO granted a higher 60 percent rating for this disability, albeit only retroactively effective as of February 8, 2007, the date on which a VA examination had shown it met the requirements for this higher rating under the applicable rating criteria.  Also, in the Board's May 2010 decision, the initial 10 percent rating prior to February 8, 2007, was increased to 30 percent.  As such, the rating for the Veteran's skin disorder already has been "staged" with a 30 percent rating in effect until February 8, 2007, when the rating increased to 60 percent.  60 percent is the highest possible schedular rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806.

There remains for consideration, however, whether the Veteran is entitled to an initial rating higher than 30 percent for his service-connected skin disorder prior to February 8, 2007, more specifically, from April 24, 1997 to February 7, 2007.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed a Veteran is seeking the highest possible rating for a disability for all time periods at issue, absent express indication to the contrary).  Also still at issue is whether he is 

entitled to a higher rating for this disability on an extra-schedular basis under 38 C.F.R. § 3.321 (b)(1), so even since receiving the highest possible schedular rating of 60 percent for this disability effectively as of February 8, 2007.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  The issue of an extra-schedular rating is addressed in the remand that follows.

In the February 2012 Memorandum Decision the Court found that the Board had failed to provide adequate reasons and bases for why the Veteran did not deserve a rating exceeding 30 percent prior to February 8, 2007.  In particular, the Court found that the Board did not provide an adequate statement of reasons and bases as to why the appellant's condition was not "exceptionally repugnant."  The Court explained that this "exceptionally repugnant" standard is a subjective rather than objective question requiring the Board to make its own factual determination from the observations gleaned from the various examiners that have had occasion to evaluate the Veteran's skin disability.  Additionally the Court found that the Board had failed to provide adequate reasons and bases with regards to the question of whether the Veteran's skin condition involved more than 40 percent of exposed area.  Specifically, the Board had failed to explain why it was a "safe assumption" that the Veteran's skin condition covered less than 40 percent of his entire body or 40 percent of exposed areas.
In the November 2016 JMPR both parties agreed that while the Board generally discussed the Veteran's various lay statements regarding his symptomatology in the context of addressing whether his condition more closely approximated the "especially repugnant" criteria, it did not address those statements and how they related to the criteria addressing "extensive exfoliation."

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

For the initial period at issue, the Veteran's existing 30 percent rating under DC 7806 acknowledges there is constant exfoliation or itching, extensive lesions, or marked disfigurement.  The next higher rating of 50 percent requires dermatitis with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or an exceptionally repugnant condition.  See 38 C.F.R. § 4.118, DC 7806 (prior to August 30, 2002).

Since the Veteran's skin condition also involves his neck, and on one occasion his face, the Board will additionally consider DC 7800 for disfigurement of the head, face and neck.  At the time he filed his claim, a 10 percent rating was warranted for moderate disfigurement of the head, face, or neck; a 30 percent rating for severe disfigurement of the head, face, or neck, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles; and a 50 percent rating was assigned for disfigurement with complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement.  See 38 C.F.R. § 4.118, DC 7800 (prior to August 30, 2002).

During the course of this appeal, VA issued new regulations for evaluating skin disorders, effective August 30, 2002.  See 67 Fed. Reg. 49590-49599 (July 31, 2002).  The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased rating for the Veteran's skin condition is warranted.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.  The amended rating criteria, if more favorable to the claim, can be applied only prospectively, however, for periods from and after the effective date of the regulatory change.  But the Veteran gets the benefit of having both the former and revised standards considered for the period after the change was made.  See VAOPGCPREC 3-2000.

Under the revised criteria, DC 7806 provides a 30 percent rating if there is evidence of exposure from 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas affected; or the need for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period.  38 C.F.R. § 4.118, DC 7806 (effective August 30, 2002).  The highest rating allowable pursuant to this Code, 60 percent, requires evidence of exposure of more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period.  Id.

Under the revised standards of DC 7800, a 10 percent rating is assigned for a scar of the head, face, or neck with one characteristic of disfigurement.  A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement.  38 C.F.R. § 4.118 (effective August 30, 2002).

A 50 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement.  Id.

Finally, an 80 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  Id.

The eight characteristics of disfigurement are: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo or hyperpigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  Id.

Applying these criteria to the facts of this case, the Board finds that, although the Veteran's skin condition meets the criteria for an initial 30 percent rating for the entire period prior to February 8, 2007 under the old criteria, the evidence does not support a disability rating higher than 30 percent during this initial period.  From the initial grant of service connection on April 24, 1997 until February 8, 2007, the evidence shows his skin condition was manifested by constant itching in addition to extensive exfoliation, as described during a March 1998 VA examination, during a personal hearing held at the RO in May 2000, in a November 2012 Veteran statement, and during subsequent VA examinations.  Since constant itching alone is sufficient for a 30 percent rating under the old criteria of DC 7806, the skin condition clearly meets the criteria for a 30 percent rating for the entire period prior to February 8, 2007.  See Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). 

That said, the Board finds no basis for assigning a higher rating during this initial period, under either the former or revised standards.  Notably, there is no suggestion the skin condition caused ulceration or crusting, had any associated systemic or nervous manifestations, or was exceptionally repugnant, as required for a higher 50 percent rating under the former criteria.  To the extent that the skin condition resulted in extensive exfoliation as evidenced by the Veteran's lay statements, a 50 percent rating requires such and associated systemic or nervous manifestations.  See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (all rating criteria that are conjunctive versus disjunctive (as evidenced by the use of the word ""and") must be satisfied to warrant a higher evaluation).  Three VA examination reports, the Veteran's treatment records, as well as the Veteran's statements, provide evidence specifically against this higher rating. 

The March 1998 VA examination report notes that a melanotic rash was present on the Veteran's mid and upper back, upper chest, and neck, which the examiner specifically observed did not involve any ulceration, exfoliation, or crusting.  The examiner also found no associated systemic or nervous manifestations.  The diagnosis was melanotic rash, extensive, on the neck and trunk.  A June 2000 VA examination report also notes that slightly hypopigmented dermatitis was observed on the Veteran's back, chest, shoulders, and posterior neck area.  However, the examiner made no indication that this condition caused ulceration, exfoliation, or crusting, or that there were associated systemic or nervous manifestations.  Moreover, while there is evidence of hypopigmented dermatitis, which is one of the eight characteristics of disfigurement, there is no evidence this covered an area greater than 39 square cm, and as it is only one of the eight characteristics it would not entitle the Veteran to a rating greater than 10 percent.  See 38 C.F.R. § 4.118, DC 7800 (effective August 30, 2002).  There equally was no indication the skin disorder was repugnant, had visible tissue loss, or deformity of one side or the face or bilateral disfigurement.  Instead, the June 2000 examiner specifically noted that the examination of the Veteran's head and neck was normal.  There also was no indication the skin condition covered more than 40 percent of the Veteran's entire body.  See 38 C.F.R. § 4.118, DCs 7800 and 7806 (effective prior to and after August 30, 2002). 

Not all of the VA examinations pertaining to the skin included an estimation of the total body area involved or the percentage of exposed areas affected.  But an April 2003 VA examination report noted the Veteran's rash on his chest and neck covered just 6 percent of his total body area.  The rash was described as a symmetrical, hyperpigmented, maculopapular rash, extending from the anterior neck to an inch above his nipples, and measured 37 cm x 16 cm.  A similar rash extended from the posterior hairline and covered his neck.  Again, while it is noted that the rash covered the neck and was hyperpigmented, it did not cover an area greater than 39 cm squared as required to be considered a characteristic of disfigurement and did involve more than 40 percent of the total body area or exposed area.  See 38 C.F.R. § 4.118, DC 7800 (effective August 30, 2002) and DC 7800 (effective prior to August 30, 2002).  Additionally, there was no evidence of deformity of the face or bilateral disfigurement, visible tissue loss, gross distortion, or suggestion the skin condition was repugnant.

In sum, none of these examination reports indicates the Veteran's skin disorder was manifested by ulceration or crusting and associated systemic or nervous manifestations.  While the examination reports have not shown extensive exfoliation, the Veteran's statements tend to support that his skin disorder has such manifestation.  So, as even the Court's single-judge memorandum decision concedes, the Appellant-Veteran has not pointed to any evidence refuting the "objective" part of the test under DC 7806, of "associated systemic or nervous manifestations."  Instead, he argues with the Board's finding in the second "subjective" part of the test, that there is no evidence that his skin condition is "exceptionally repugnant," as well as whether there is evidence of "extensive exfoliation."  Specifically, he argues with the Board's finding that none of the reports describe the skin condition as being "exceptionally repugnant" and/or consisting of "extensive exfoliation."

With regards to the "subjective" part of the test pertaining to the skin condition being "especially repugnant," citing to its holding in Buczynski v. Shinseki, 24 Vet. App. 221, 225 (2011), the Court pointed out that it had found a similar statement by the Board insufficient for concluding the Veteran's skin condition was not exceptionally repugnant.  But while it is true the Board, itself, must make this assessment, it is equally true the Board makes this determination from the observations of the examiners that have had occasion to evaluate the Veteran's disability.  Although not directed to comment on whether the Veteran's condition was exceptionally repugnant, the examiners were specifically requested to comment on the severity of the skin disorder in relation to the applicable rating criteria, the mere fact that none described this skin disorder in this or similar descriptive terms suggests it did not have this required level of appearance.  It seems illogical that there would have been exceptional repugnance, something that seemingly would be very evident even to casual observation since so readily apparent, and yet the examiner not give this indication in some form or fashion--especially, again, since specifically charged with the responsibility of commenting on the various aspects of the skin disorder, so including its appearance.  While the VA examiners observed that the Veteran's skin disorder affected his face, neck, shoulders, chest, and back, none identified more than one characteristic of disfigurement or characterized the skin disorder in terms approaching the severity of exceptionally repugnant. 

The probative lay evidence also does not establish that the service-connected skin condition most nearly approximates exceptionally repugnant.  The Veteran's VA treatment records during this period note his complaints of a rash on the upper part of his body and itching made worse with heat.  However, the rash was not constantly present; during examinations at VA facilities in March 2002 and March 2003 he had no evidence of a skin rash or lesions.  The Veteran has consistently complained of itching and some scaling associated with his skin condition, as well as peeling and shedding of the skin, differences in skin coloring, and the burning and cracking from the sun.  The Veteran is competent to report his symptoms, and while his statements are indicative of marked disfigurement under DC 7806 in addition to extensive exfoliation, the Board finds that they do not establish a disorder that most nearly approximates the degree of disability contemplated by the term "exceptionally repugnant."  The current 30 percent evaluation recognizes the Veteran's disability as approximating marked disfigurement under DC 7806 with an increased 50 percent evaluation requiring an even higher level of disability characterized as exceptionally repugnant.  The Veteran's lay reports of scaling, cracking, and peeling skin simply do not establish the presence of a condition that most nearly approximates exceptionally repugnant, especially in light of the objective medical evidence that establishes only one characteristic of disfigurement, no findings of ulceration or crusting, and no associated systemic or nervous manifestations.  

However, while the Veteran's lay statements tend to establish extensive exfoliation, his statements have not shown associated systemic or nervous manifestations.  Even with considering extensive exfoliation, the March 1998 and January 1999 examination reports specifically note there were no associated systemic or nervous manifestations.  The Veteran's testimony at both the March 2000 and August 2009 hearings does not include any report of associated systemic or nervous manifestations.  As already noted above, for a 50 percent rating based on extensive exfoliation, the evidence must also include associated system or nervous manifestations.  The rating criteria specifically include associated systemic or nervous manifestations in addition to extensive exfoliation as evidenced by the conjunctive "and" in the rating criteria.  See Melson, 1 Vet. App. at 337.  As the medical and lay evidence does not suggest the Veteran's skin condition most nearly approximates the criteria associated with a higher rating, there simply is no basis for assigning an initial rating higher than 30 percent under the former criteria.

There also is no basis for assigning a rating higher than 30 percent under the revised criteria, which require evidence of exposure of more than 40 percent of the entire body or more than 40 percent of exposed areas.  The April 2003 examination report noted the rash on the Veteran's chest and neck covered only 6 percent of his total body area.  While there was some suggestion his skin disorder also at times may have involved his back, chest, and shoulders, there is no indication the rash covered more than 40 percent of his total body area.  Unfortunately, the examiner did not comment on the percentage of exposed areas affected, but since the posterior neck was the only exposed area affected at that particular time, the disorder cannot be said to have involved more than 40 percent of exposed areas.  The neck simply does not equate to this amount of required effect. 

The Veteran contends that his skin condition affects more than just his neck and involves his head, hands, arms, back, and groin.  VA examiners and treatment providers have identified a rash on several parts of the Veteran's body, but it is clear that such findings do not describe a condition that is so widespread as to involve more than 40 percent of the entire body or more than 40 percent of exposed areas.  There is also evidence that the Veteran's skin condition was not always present during the claims period; as noted above, examiners at various VA facilities observed in March 2002 and March 2003 that the Veteran's skin was clear of rash and lesions.  These findings also indicate the skin condition did not most nearly approximate coverage of more than 40 percent of the body.

Further, there is no indication the Veteran required constant or near-constant systemic therapy during any 12-month period.  During a June 2000 VA examination, he reported that he was not then currently receiving treatment for his condition and he has consistently stated that he utilized over-the-counter remedies to control his symptoms of itching.  In short, then, there is no basis to assign a disability rating higher than 30 percent under the new criteria of DC 7806 for the entire period prior to February 8, 2007.

And lastly, a 50 percent rating is not available under the revised criteria of DC 7800 since the area of involvement was not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); nor did it have four or five characteristics of disfigurement.

In conclusion, the Board finds that the Veteran's skin condition meets the criteria for an initial 30 percent rating for the entire period prior to February 8, 2007, but that the preponderance of the evidence is against a higher rating during this initial period.  And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in his favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

ORDER

A disability rating greater than 30 percent for the skin disorder prior to February 8, 2007 is denied, and ever since the Veteran has had the highest possible schedular rating of 60 percent for this disorder under the applicable DC.


REMAND

Regrettably, a remand is necessary for the remaining claims.  Concerning service connection for right hand/arm CTS, including due to undiagnosed illness, this issue was previously remanded for further development that was to include obtaining a medical nexus opinion addressing whether there is an etiological relationship or correlations between this claimed disability and the Veteran's active military service.  This requested medical nexus opinion was obtained in March 2014 and again in March 2015.  Both opinions were negative.  At the time of the March 2014 opinion, the VA compensation examiner did not have any medical records to review.  The same examiner, after being able to review the medical evidence, provided a second negative opinion in March 2015.  The rationale was that CTS was first diagnosed in 2007 nearly 15 years after the Veteran's separation from active duty.  In September 2016 correspondence, the Veteran's representative argued that the March 2015 medical nexus opinion is not adequate as it did not address the Veteran's testimony at his August 2009 Board hearing of having symptoms during service that have persisted since service.  Consequently, the Board concludes that a remand is necessary to obtain an addendum medical nexus opinion that addresses the Veteran's testimony regarding the onset of his symptoms.  

As concerning the remaining claims of entitlement to extra-schedular ratings for the skin and low back disabilities, these claims must be remanded.  Most recently, in January 2016, the Board determined that referral for special consideration of extra-schedular ratings to the Under Secretary for Benefits or the Director of the Compensation and Pension Service, was not necessary.  As noted in the Introduction, the Court granted a JMPR and remanded these claims back to the Board for consideration.  A written brief presentation from the Veteran's attorney received in July 2017 presents argument that the three prongs to determine whether referral for extra-schedular consideration was warranted under Thun v. Peake, 22 Vet. App. 11 (20080, aff'd sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009) have been met.  Accordingly, the Veteran's attorney argued that the Board should remand these claims for referral for extra-schedular consideration.  After considering the evidence of record, including the November 2016 JMPR, as well as the January 2017 written brief presentation, the Board has determined that a remand is necessary for referral of extra-schedular consideration of the Veteran's skin and low back disabilities.  

Accordingly, these remaining claims are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain all additional evaluation or treatment records needing to be obtained.  This includes, but is not limited to, records of treatment received from the Dublin VA Medical Center.  If any such records identified by the Veteran are unavailable, he must be informed and notations of the unavailability of the records and the attempts made to obtain them documented in the claims file.  38 C.F.R. § 3.159(c)(2) and (e)(1).  All such available reports should be associated with the claims file so they may be considered.

2.  Obtain an addendum medical nexus opinion from the March 2015 VA compensation examiner (or, if unavailable, a medical professional with the appropriate expertise) to determine the etiology of the diagnosed right hand/arm CTS.  His claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history.  All indicated tests should be conducted, and the reports of any such studies incorporated into the examination report to be associated with the claims file.  

The examiner is asked to answer the following: 

Whether it is as likely as not (50 percent or greater probability) that the Veteran's current right hand/arm CTS incepted during his active military service from August 1987 to August 1990 and from November 1990 to June 1991; or alternatively is otherwise related or attributable to his service.

In providing this opinion, the examiner should consider the Veteran's August 2009 testimony describing how he had problems with his right hand, including cramping, during his military service.    

When responding, it is most essential the examiner provide explanatory rationale for all opinions expressed and conclusions reached, preferably citing to specific evidence in the file as support.  If the examiner must resort to mere speculation to render the requested opinion, he/she must state what reasons, with specificity, the question being asked is outside the scope or realm of a medical professional conversant in VA practices, what additional evidence, if available, would allow for a more definitive response, or whatever the reason is for not being able to respond more definitively.

3.  Refer the claims of entitlement to extra-schedular ratings for the service-connected skin disorder and a low back disability to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extra-schedular consideration of each of these claims. 

4.  Ensure that the examination report complies with (answer the questions posed in) this Remand.  If it does not, return the report to the examiner for all needed additional information.  38 C.F.R. § 4.2.

5.  Then readjudicate these claims in light of this and all other additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


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



______________________________________________
KEITH W. ALLEN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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