Citation Nr: 1751409 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-22 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for tension headaches. 2. Entitlement to an increased (compensable) rating for a skin disorder, to include tinea versicolor and tinea pedis. REPRESENTATION Appellant represented by: Tommy Klepper, Attorney ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from April 1963 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was scheduled for a Board hearing in October 2017, but withdrew his hearing request in September 2017. This appeal has been advanced on the Board's docket. See 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017). The skin disorder issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Since July 29, 2014, the Veteran's headache symptoms have most nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. CONCLUSION OF LAW The criteria for a schedular rating of 50 percent for headaches have been met since July 29, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated as 50 percent disabling. Id. The Court has interpreted the phrase "productive of severe economic inadaptability" to include both "producing" and "capable of producing" economic inadaptability. See Pierce, 18 Vet. App. at 446. Further, the criteria for a 50 percent evaluation do not require the Veteran to be incapable of any substantially gainful employment; rather, "[e]vidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence." See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Pierce, 18 Vet. App. at 446; VA's M21-1 Adjudication Procedures Manual (M21-1), III.iv.4.G.7.e. Dr. Ellis's July 2012 independent examination documented the Veteran's reports of non-severe "headaches only occasionally" since about the mid-1990s and not needing medication. The Veteran's December 2012 Statement noted headaches several times per week with vomiting and sensitivity to light and noise from separation until the mid-1990s, when "they got better." Dr. Westcott's March 2014 and May 2014 treatment records documented the Veteran's reports of no headaches. However, during the July 2014 VA headache examination, the Veteran reported constant head pain on both sides of the head with nausea and sensitivity to sound, lasting less than one day at a time. The July 2014 examiner assessed that the Veteran experienced no characteristic prostrating attacks of migraine headache pain, but prostrating attacks of non-migraine headache pain more frequently than once per month. The examiner failed to provide any rationale as to how she distinguished between migraine and non-migraine headache pain; however, the Board finds the prostrating attacks more frequently than once per month to be due to migraine headache pain for rating purposes. Specifically, the Veteran's level of pain is a lay-observable symptom that he is competent to report occurs simultaneously with his other lay-observable migraine symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's comprehensive symptoms for this period most nearly approximate those contemplated by a 50 percent evaluation. The 30 percent evaluation only contemplates a frequency of prostrating attacks up to an average of once per month, a frequency which the Veteran's headaches exceed. Further, a 30 percent evaluation does not consider the duration of the Veteran's attacks, which the Board finds to be prolonged. Lastly, the Board finds the Veteran's symptoms capable of producing severe economic inadaptability, as someone with the frequency and severity of such symptoms would likely need to use sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation. Additionally, the Board notes that an evaluation of 50 percent is the highest schedular evaluation available for migraine headaches. All potentially applicable codes have been considered and further staged ratings are not warranted, as the Veteran had a relatively stable level of symptomatology prior to July 29, 2014. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Fenderson v. West, 12 Vet. App. 119, 126-27. ORDER Entitlement to an increased, 50 percent, rating for headaches is granted. REMAND When a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed." See Savage v. Shinseki, 24 Vet. App. 259 (2011). The Veteran's skin disorder currently has a noncompensable rating under DC 7820 (infections of the skin not listed elsewhere). See 38 C.F.R. § 4.118, DC 7820. Depending upon the predominant disability, skin disorders under DC 7820, can be rated under: DC 7800 (disfigurement of the head, face, or neck); DC's 7801, 7802, 7803, 7804, or 7805 (scars); or DC 7806 (dermatitis or eczema). Id. However, no evidence currently of record indicates that the Veteran has relevant scarring (in fact, the July 2014 VA examiner specifically noted no scarring) or disfigurement of the head, face, or neck (Dr. Ellis's July 2012 independent examination revealed tinea versicolor on body parts other than the head, face, and neck). See July 2012 report by Dr. Ellis; July 2014 VA skin examination report. As such, the only applicable diagnostic code for rating purposes is DC 7806 (dermatitis or eczema). Under DC 7806, a noncompensable rating is warranted when the skin condition is less than 5 percent of the entire body or less than 5 percent of the exposed areas affected and no more than topical therapy was required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806. A 10 percent rating is warranted when the skin condition is at least 5 percent, but less than 20 percent, of the entire body or of the exposed areas affected or intermittent systemic therapy (such as corticosteroids or immunosuppressive drugs) were required for a total duration of less than six weeks during the past 12-month period. Id. The July 2012 independent examination by Dr. Ellis revealed "obvious tinea versicolor on the trunk, proximal arms and thighs and some on the distal arms and distal legs, more on the upper chest and upper back" with "no tinea pedis found on the feet today." Dr. Ellis also noted flare ups, with symptoms worsening in the summer and improving in the winter, and use of "medicines." This "obvious tinea versicolor" was not documented throughout the remainder of the Veteran's treatment record. See March 2014 treatment record from Dr. Westcott (skin inspection revealed no rash or lesions); May 2014 treatment record from Dr. Westcott (skin inspection revealed no rash or lesions); July 2014 VA skin examination (no visible pathology). Further, there is no documented use of systemic therapies throughout the record. See July 2014 VA skin examination (the Veteran reported treatment with a topical cream, but not in the last 12 months). Nevertheless, the Board is obligated to ask Dr. Ellis to clarify his report, if possible, by: (1) quantifying the extent of the tinea versicolor as a percent of the entire body or as a percent of the exposed areas; and (2) clarifying whether any of the "medicines" were "systemic therapy," as defined in the directives. See Johnson v. Shulkin, 862 F.3d 1351 (2017). This information is required by the rating criteria. See Savage, 24 Vet. App. at 259. Accordingly, the case is REMANDED for the following action: (Please note that this appeal has been advanced on the Board's docket. See 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Seek an addendum opinion from Dr. Ellis, after requesting any needed authorization from the Veteran, to clarify his July 2012 report by: (a) quantifying the extent of the tinea versicolor as a percent of the Veteran's entire body or as a percent of exposed areas; and (b) clarifying whether any of the "medicines" were "systemic therapy," as defined below. Dr. Ellis is advised of the following: 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." Id; Dorland's Illustrated Medical Dictionary 1986 (32 ed. 2012). The use of a topical corticosteroid is not systemic therapy unless administered on a large enough scale such that it affects the body as a whole. See Johnson v. Shulkin, 862 F.3d 1351 (2017). 2. If Dr. Ellis does not provide the needed clarification, ask a VA physician to review Dr. Ellis' report and provide the clarification to the extent possible. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the remanded matter. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded appeals must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs