Citation Nr: 1339270 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-44 342A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable evaluation for the service-connected recurrent abscesses related to methicillin-resistant staphylococcus aureus (MRSA). 2. Entitlement to a disability rating in excess of 30 percent for the service-connected pseudofolliculitis barbae. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Attorney at Law ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active duty from November 2001 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the RO in Newark, New Jersey that granted service connection and assigned a noncompensable rating for recurrent abscesses related to MRSA and continued a previously assigned rating of 30 percent for the service-connected pseudofolliculitis barbae. The Veteran subsequently filed a timely Notice of Disagreement for the evaluation of recurrent abscesses related to MRSA and pseudofolliculitis barbae. The RO issued a Statement of the Case for both issues in September 2010. In light of the VA Form 9 that states the Veteran is appealing the "SOC dated 9/8/10 and Rating Decision Dated 11/12/09" the Board will interrupt the VA Form 9 to perfect an appeal as to both issues. Jurisdiction was transferred from the RO in Newark, New Jersey to Winston-Salem, North Carolina in December 2010. In a May 2011 rating decision, the RO denied service connection for a tooth condition and granted service connection and assigned a 30 percent disability rating for major depressive disorder, effective on September 2, 2010. The issue of entitlement to a TDIU rating may be reasonably inferred from the evidence of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. As discussed, a review of the documents in the electronic file reveals additional VA treatment records. The remaining documents are either duplicative of the evidence of record or not relevant to the issues on appeal. The appeal is remanded to the RO. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that the service-connected recurrent abscesses related to MRSA, rated as noncompensable, and the service-connected pseudofolliculitis barbae, rated as 30 percent disabling, warrant higher disability ratings. The VA treatment records from June 2011 indicate that the Veteran requested a dermatology consultation for his service-connected "eczema" disability. It does not appear that the Veteran was ever scheduled for the consultation or requested the consultation in regard to the service-connected recurrent abscesses related to MRSA or the service-connected pseudofolliculitis barbae. The VA treatment records from August 2012 also show that the Veteran complained of a skin condition and had a recurrence of folliculitis involving the scalp. The VA medical personnel did not indicate whether the folliculitis was attributable to either of the service-connected skin disorders. The Board notes that an August 2010 VA examiner indicated that the Veteran had multiple furuncles caused by MRSA all over his body and had started to develop a scalp abscess. Accordingly, a new VA skin and scars examination, to determine the severity of each service-connected skin disorder and to determine which symptoms are attributable to which service-connected skin disorder, is warranted. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. In regard to the service-connected recurrent abscesses related to MRSA, the October 2009 VA examiner reported that the Veteran was treated with antibiotics, including vancomycin and tetracycline. The service-connected skin disorder is currently rated under Diagnostic Codes 7899-7806. The rating criteria for DC 7806 includes the use of systemic therapy, such as corticosteroids or other immunosuppressive drugs. Systemic therapy is defined as "pertaining to or affecting the body as a whole." See Dorland's Illustrated Medical Dictionary at 1865(32nd ed. 2012). As oral antibiotics travel through the bloodstream, this would appear to qualify as systemic therapy. Although the rating criteria mention corticosteroids or other immunosuppressive drugs as examples of systemic therapy, there is nothing in the rating criteria to suggest that systemic antibiotic therapy is insufficient to warrant a rating under DC 7806. See Brown v. Shinseki, 2012 WL 738725 at *3 (March 8, 2012, Vet. App.) (non-precedential) (holding in the context of an appeal concerning the use of systemic antibiotics for a skin disorder that that the use of the phrase "such as" in DC 7806 is an ambiguously worded regulation that might be interpreted to apply to systemic therapy that is other than immunosuppressive in nature). Accordingly, all treatment, including the use of antibiotics, must be determined to include the length of time prescribed to the Veteran and whether the treatment constituted systemic therapy. On remand, the Veteran's VA treatment records should also be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In regard to a TDIU rating, the Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the service-connected disability, then part and parcel to that claim for an increased rating is whether a total compensation rating based on individual unemployability (TDIU) is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In reviewing the record in the light most favorable to the Veteran, he has essentially alleged that he is unable to work as a result of his service-connected skin disorders. Therefore, the RO should develop the claim for a TDIU rating in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board notes that there were additional VA treatment records that the RO did not consider in its most recent adjudication of the claim in the September 2010 Statement of the Case. While in November 2010, the Veteran waived RO consideration of any additional evidence and records that he had submitted, the RO should address these additional treatment records in readjudicating the claims for increase. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his service-connected skin disorders since 2005. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. A specific request should be made for records from the Salisbury VAMC The Veteran also should be notified that he may submit medical evidence and treatment records in support of his claims. 2. The RO then should have the Veteran scheduled for a VA skin and scars examination to determine the current severity of the service-connected recurrent abscesses related to MRSA and pseudofolliculitis barbae. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed and the results reported in detail. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should specifically address which symptoms and scarring are attributable to which service-connected skin disorder. If the examiner is unable to render a determination as to whether a symptom is attributable to the service-connected recurrent abscesses related to MRSA or the service-connected pseudofolliculitis barbae, the examiner should so state. The examiner should also note each medication prescribed to treat the service-connected skin disorders. In so doing, the examiner should state for which service-connected skin disorder the medication was prescribed, how long the Veteran was required to take the medication, and whether the use of the medication constitutes systemic therapy. 3. The RO also should take all indicated steps to provide the Veteran an application for a TDIU rating under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Based on his response, the RO should pursue all indicated development in order adjudicate the claim if presented by the Veteran. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remained denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case, to include addressing any appeal referable to a TDIU rating, and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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 Supp. 2013). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).