Citation Nr: 1800592 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-35 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an earlier effective date for the service-connected seborrheic dermatitis. 2. Entitlement to an initial rating in excess of 10 percent for seborrheic dermatitis. 3. Entitlement to an increased rating in excess of 30 percent for onychomycosis, bilateral great and 2nd toes prior to May 1, 2013 and a compensable rating from May 1, 2013, to include considering whether it was appropriate to reduce the rating. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to November 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2011, the Board reopened entitlement to service connection for seborrheic dermatitis and remanded it for further development. In November 2011, the Board granted service connection for seborrheic dermatitis. A March 2012 rating decision implemented the Board decision and granted service connection for seborrheic dermatitis assigning a 10 percent rating effective August 17, 2007. In January 2017, the Veteran had a videoconference hearing before the undersigned Veterans' Law Judge. A transcript is of record. In April 2013, the Veteran filed a claim for service connection for digital neuropathy of the bilateral toes. A rating decision was issued in April 2014 and a SOC (statement of the case) was issued in November 2016. He filed an appeal the same month and requested a hearing at his local VA Office. This issue has been separated from the current appeal to afford him a hearing. In August 2012, the RO proposed to decrease the rating for onychomycosis from 30 percent to a non compensable rating. In February 2013, the RO implemented the decrease, effective May 1, 2013. Although the reduction is not specifically before the Board, the Board deems the issue of whether the reduction was proper to be part and parcel of the current appeal for an increased rating for onychomycosis because the increased rating claim covers the period prior to, during, and after the reduction. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that a review of an increased rating claim may take into account varying and distinct disability ratings throughout the entire time period the increased rating claim has been pending, to account for the dynamic nature of the disorder at issue). Accordingly, the Board takes jurisdiction of the issue of whether the reduction was proper. The issues of entitlement to an initial rating in excess of 10 percent for seborrheic dermatitis and an increased rating in excess of 30 percent for onychomycosis, bilateral great and 2nd toes prior to May 1, 2013 and a compensable rating from May 1, 2013, to include considering whether it was appropriate to reduce the rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On January 10, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative that a withdrawal of the issue of entitlement to an earlier effective date for the service-connected seborrheic dermatitis. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to an earlier effective date for the service-connected seborrheic dermatitis by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Earlier Effective Date The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran and his representative have withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. (See Hearing Transcript p. 2). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to an earlier effective date for the service-connected seborrheic dermatitis is dismissed. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014). Here, the Veteran was last examined in January 2012 for his skin disabilities. The examination is 6 years old and thus inadequate to evaluate the current status of his skin disabilities. The issues are therefore remanded to obtain a medical opinion on the severity of his seborrheic dermatitis and onychomycosis. With regard to onychomycosis, the Veteran submitted a letter from his physician in January 2013. His physician stated, in part, that he has been given several courses of Lamisil which-was systemic treatment over the years (2001, 2005, 2008, 2010 and 2012). Last attempt was on September 2012 and he was about to complete the three months course of Lamisil without improvement. He was seen by podiatry in the past and offered permanent nail removal, but decided against this option. The physician further stated that systemic corticosteroid or immunosuppressive treatment for fungal nail condition was contraindicated; and that, anti-fungal systemic treatment was the only systemic treatment for this condition for which the Veteran had received several of that type of treatments. Further, on July 14, 2017, the Federal Circuit issued a precedential opinion in Johnson v. Shulkin, that reversed and remanded a decision by Court of Appeals for Veterans Claims (Veterans Court) which held that Diagnostic Code 7806 under 38 C.F.R. § 4.118, a rating for skin disabilities, unambiguously defines topical corticosteroid treatment as "systemic therapy" rather than "topical therapy." The structure and content of DC 7806 make clear that it contemplates two types of therapy, "systemic therapy" and "topical therapy," as the operative terms of the diagnostic code, not the exemplary reference ("such as") to corticosteroids. Further, that the use of "such as" in DC 7806 did not mean that all forms of treatment with "corticosteroids and other immunosuppressive drugs," no matter how narrowly localized in their impact, count as "systemic therapy." The Federal Circuit went on to explain that nothing in DC 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects "only therapy to which it is applied" to count as systemic therapy under that code. Finally, the RO/AMC should obtain all outstanding VA treatment records and any pertinent private treatment records to ensure completeness of the record. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's treatment records from the Temple VA Medical Center dated since May 25, 2017. 2. Make arrangements to obtain the information necessary from the Veteran to obtain any private treatment records not already associated with the claims file. 3. Schedule a VA dermatology examination with a qualified examiner to determine the current severity of his service-connected seborrheic dermatitis and onychomycosis. The percent of exposed and total body area affected by neurodermatitis should be specified. Any medication used to treat the Veteran's skin disabilities, and the frequency of its use, should be specified. The examiner should review the claims folder, a copy of this remand, and any evidence in Virtual VA. All indicated testing should be conducted. Please also comment on the January 2013 private opinion. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 4. Finally, readjudicate the claims on appeal. If the claims remain denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs