Citation Nr: 18142066 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 14-16 140 DATE: October 16, 2018 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent for tinea cruris, pedis, and unguium and removal of bilateral toenails is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to December 1975 and January 1979 to April 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran did not report for a scheduled Board hearing. As the Veteran has not asserted good cause for missing the hearing, the request is considered withdrawn. 38 C.F.R. § 20.702(d). Additional VA treatment records relevant to the issues addressed herein were associated with the claims file after the January 2018 Supplemental Statement of the Case (SSOC). As these documents were secured by VA, and because a waiver of AOJ consideration has not been provided by the Veteran, a remand is warranted in order to allow the RO to review this evidence and issue a SSOC. Additionally, a September 2018 Social Security Administration (SSA) inquiry indicated that SSA denied the Veteran’s disability claim. However, the Veteran’s claims file does not contain any documentation that the RO attempted to obtain copies of any documents or medical records used by SSA in making its determination. Although SSA may have denied the Veteran’s claim, underlying documents considered by SSA may be relevant to the issues currently on appeal. Accordingly, outstanding SSA records should be obtained on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. VA treatment records dated in December 2011, February 2014, October 2014, and September 2018 show that the Veteran underwent audiological consultation; however, neither the audiograms nor the numerical interpretation of the results are included in the evidence available in the claims file. The VA treatment records indicated that the audiograms were available to view under “Tools” in the toolbar. The missing audiograms may show that an increase in disability has occurred. Therefore, these records must be obtained and associated with the claims file. 2. Entitlement to a rating in excess of 30 percent for tinea cruris, pedis, and unguium and removal of bilateral toenails is remanded. The Board observes that in the past, the Veteran was prescribed terbinafine 250mg orally for 12 weeks in 2011. See November 2011 VA treatment record. Further, VA treatment records suggest that during the appeal period, the Veteran was prescribed terbinafine HCL 1% cream, betamethasone valerate 0.1% lotion, clotrimazole, and ketoconazole 2% shampoo. The December 2017 VA examiner determined that the Veteran used topical corticosteroids for six weeks or more, but not constantly. However, the Veteran reported to the examiner that he uses terbinafine cream once per day between his toes, abdomen, and buttocks and betamethasone once per day on his abdomen and buttocks. Additionally, VA treatment records indicate that the Veteran has been prescribed terbinafine since May 2011. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit held that 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court of Appeals for Veterans Claims held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Thus, the Board finds that a VA medical opinion is required to address whether the Veteran’s use of topical medications amounts to constant or near-constant systemic therapy. Finally, updated VA treatment records should be associated with the record. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to specifically include all VA audiological consultations and audiograms (including audiograms dated in December 2011, February 2014, October 2014, and September 2018, viewable at “DisplayAudiogram” in the “Tools” menu). If it is not clear that the word recognition testing was conducted using the Maryland CNC test, the AOJ should seek clarification from the facility/audiologist as to whether the Maryland CNC was utilized. If the requested records are not available, the Veteran should be notified and given the opportunity to provide them himself. 2. Contact the SSA and obtain a copy of the agency’s decision concerning the Veteran’s claim for disability benefits, including any medical records relied on to make the decision. 3. Then, the Veteran should be afforded a VA medical opinion to determine the severity and manifestation of his service-connected skin disability. The examiner is requested to review the claims file, to include a copy of this remand. Only if deemed necessary by the VA examiner is an actual examination required. a. The examiner should note the medications the Veteran has used to treat his skin disability since October 2009 and the duration of such treatment, to include but not limited to terbinafine HCL 1% cream, betamethasone valerate 0.1% lotion, clotrimazole, and ketoconazole 2% shampoo. b. The examiner should indicate whether each medication is topical, corticosteroid, or immunosuppressive. c. The examiner should indicate whether the Veteran has received constant or near-constant systemic therapy, including but not limited to corticosteroids phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs during the past twelve-month period. d. If the examiner determines that the medication is topical, the examiner should address whether it was (1) administered on a large enough scale such that it affected the body as a whole; (2) the method by which the treatment works; and (3) its side effects in determining whether the medication could be considered systemic therapy. In addressing these questions, the examiner should consider the Veteran’s report of using terbinafine cream once per day between his toes, abdomen, and buttocks and betamethasone once per day on his abdomen and buttocks. See December 2017 VA examination report. A complete rationale must be provided for all opinions. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel