Citation Nr: 18144687 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-35 216 DATE: October 25, 2018 REMANDED Entitlement to service connection for right shoulder sprain secondary to service-connected left shoulder degenerative changes is remanded. Entitlement to service connection for left hand numbness secondary to service-connected left shoulder degenerative changes is remanded. Entitlement to service connection for right hand numbness secondary to service-connected left shoulder degenerative changes or right shoulder sprain is remanded. Entitlement to an increased rating higher than 10 percent for left shoulder degenerative changes is remanded. Entitlement to an increased rating higher than 10 percent for lumbosacral strain with thoracic spine degenerative changes is remanded. Entitlement to an increased rating higher than 10 percent for pseudofolliculitis barbae is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REASONS FOR REMAND The Veteran service in active duty from November 1998 to July 2000. In November 2016, the Veteran testified before the undersigned Veterans Law Judge; a transcript is associated with the claims file. During his November 2016 hearing, the Veteran alleged an inability to retain employment due to his service-connected disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, the issue of entitlement to a TDIU is now properly before the Board. 1. Entitlement to service connection for right shoulder sprain secondary to service-connected left shoulder degenerative changes is remanded. The Veteran contends that he has a right shoulder disability secondary to his service-connected left shoulder disability. In May 2014, the VA examiner diagnosed right shoulder strain but did not provide an opinion addressing whether it was due to or aggravated by the Veteran’s service-connected left shoulder disability. During his November 2016 hearing, the Veteran testified that his right shoulder started to bother him around 2011 after he had surgery in his left shoulder. He explained that, over the years, he favored his left shoulder and used his right shoulder more than he would have otherwise. He also stated that he had pain and weakness in his right shoulder. Given the Veteran’s statements concerning his right shoulder strain being due to his service-connected left shoulder disability, his diagnosis of right shoulder strain, and the lack of medical opinion addressing the nature and etiology of the Veteran’s right shoulder strain, the Board finds that a remand is necessary to obtain a VA opinion from an appropriate physician as to whether the Veteran’s right shoulder strain was due to or aggravated by his service-connected left shoulder disability. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). 2. Entitlement to service connection for left hand numbness secondary to service-connected left shoulder degenerative changes, and right hand numbness secondary to right shoulder strain or service-connected left shoulder degenerative changes is remanded. The Veteran contends that he has right hand numbness secondary to his right shoulder strain or his service-connected left shoulder disability, and left hand numbness secondary to his service-connected left shoulder disability. VA treatment records in July 2011 reflect complaints of numbness in the left upper extremity over the past few months. The physician assessed left shoulder with signs and symptoms of impingement with possible rotator cuff tendinitis. During his November 2016 hearing, the Veteran testified that he had been told he had pinched nerves in his bilateral shoulders, which were the cause of the numbness in both hands. Given the Veteran’s statements concerning his right and left hands numbness being due to his service-connected left shoulder disability, his diagnosis of possible left shoulder impingement in July 2011, the Board’s remand herein of the Veteran’s claim for service connection for right shoulder strain, and the fact that the Veteran has not been provided with a VA examination to assess his assertions of bilateral upper extremity numbness, the Board finds that a remand for a VA examination and opinion is warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to an increased rating higher than 10 percent for left shoulder degenerative changes is remanded. The Veteran’s left shoulder disability is currently rated as 10 percent disabling. The Veteran underwent a VA examination for his left shoulder disability in May 2014. The Veteran reported that his shoulder popped and he had pain with movement. Range of motion was flexion to 160 degrees, abduction to 160 degrees, external rotation of 90 degrees, and internal rotation of 90 degrees, with pain on all movements at the end of the range of motion. The examiner stated that there were contributing factors of pain, weakness, fatigability and/or incoordination, and there was additional limitation of functional ability of the shoulder joint during flare-ups or repeated use over time. The examiner opined that the degree of range of motion loss during pain on use or flare-ups was approximately 10 to 20 degrees upon flexion and abduction. During his November 2016 hearing, the Veteran testified that his left shoulder disability had worsened and that his strength had diminished. The Veteran stated that his range of motion had decreased, although his limitation depended on the weight of the object he lifted. He explained that he had experienced flare-ups at work, which he described as sharp and throbbing, and that he had dropped objects due to the pain. Where the record does not adequately reveal the current state of the claimant’s disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, the Board finds that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran’s left shoulder disability. See 38 U.S.C. § 5103A. This examination should also comply with the Court’s decisions in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), which were issued well after the most recent exam in this case. 4. Entitlement to an increased rating higher than 10 percent for lumbosacral strain with thoracic spine degenerative changes is remanded. The Veteran’s back disability is currently rated as 10 percent disabling. The Veteran underwent a VA examination for his back in May 2014. The Veteran reported that he had constant back pain that woke him up and worsened with bending. Range of motion was flexion to 80 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. The examiner found that the Veteran had normal muscle strength, deep tendon reflexes, and sensation. There was no radicular pain or symptoms of radiculopathy. His posture and gait were within normal limits; and there were contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. Specifically, the examiner opined that the degree of range of motion loss during pain on use or flare-ups was approximately 10 degrees with flexion and extension. During his November 2016 hearing, the Veteran testified that his back disability had worsened and that he experienced pain and muscle spasms. He stated that the pain radiated down the back of his legs to his knees, and that it was “like a bunch of pins.” He also reported that when he bent over, his back sometimes locked up and he had to force himself to come up because he could not walk bent over. He described flare-ups once to twice a week with prolonged sitting and standing, and stated that he now wore a brace constantly. Where the record does not adequately reveal the current state of the claimant’s disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Snuffer, 10 Vet. App. at 403. Thus, the Board finds that a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran’s back disability. See 38 U.S.C. § 5103A. This examination should also comply with the Court’s decisions in Correia, 28 Vet. App. at 158 and Sharp, 29 Vet. App. at 26, which were issued well after the most recent exam in this case. 5. Entitlement to an increased rating higher than 10 percent for pseudofolliculitis barbae is remanded. The Veteran’s skin disability is currently rated as 10 percent disabling. The Veteran underwent VA examination for his skin in May 2014. The Veteran reported that the condition had worsened because he had to shave for work. The examiner noted slight scarring on the anterior upper neck due to previous pseudofolliculitis barbae. The Veteran had not used oral or topical medication, or had treatment or procedures other than systemic or topical medications in the past 12 months. The total body area and exposed area were less than 5 percent. During his November 2016 hearing, the Veteran testified that his skin disability had worsened. He explained that he had to shave every day for work, which resulted in bleeding, scarring, pain, and sometimes infection with puss. He stated that he used prescription medication (peroxide wash and Retin-A) every time his skin flared-up, which was any time he shaved. He stated that he shaved approximately four times per week. He also explained that he could only use the medication at night because it of the negative side-effects associated with sun exposure. In Johnson v. Shulkin, the Federal Circuit held that the “use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case” under the old criteria for 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. 862 F.3d 1351, 1356 (Fed. Cir. 2017). The Federal Circuit noted that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. In Warren v. McDonald, the Court held that “systemic therapy” for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is “like” a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. 28 Vet. App. 194 (2016). In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims LEXIS 1314 (Sept. 28, 2018), the Court interpreted Johnson to mean that for a treatment to be systemic, it must affect the entire body in its treatment of the condition. Accordingly, consideration must be given on how a topical treatment works and how it affects the body as a whole, not the size of the skin area it is applied to. The Court held that such determination was a factual question, and that the side effects of a topical therapy were irrelevant to this consideration. In addition, the Court held that the questions of whether a topical treatment was systemic and whether a systemic therapy was “like” a corticosteroid or other immunosuppressive drug did not need to be addressed in a particular order since both elements must be present to justify a higher rating under DC 7806. Here, the Veteran testified that used a peroxide wash and Retin-A to treat his facial skin disability. However, there is no VA opinion addressing whether the Veteran’s topical treatment for his skin disorder constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs.” As such, the Board finds that a remand is necessary to obtain a VA opinion from an appropriate physician, preferably a dermatologist. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 6. Entitlement to a TDIU The Veteran also contends that he is unemployable due to his service-connected disabilities. The Board notes that the decision herein remanded for additional development the Veteran’s claims for increased rating for a left shoulder disability, back disability, and skin disability; as well as his claims for service connection for right shoulder strain and bilateral hands numbness, which may impact adjudication of the claim for entitlement to a TDIU. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claim for entitlement to a TDIU must be remanded as well. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate physician to address the nature and etiology for right shoulder strain, to include as secondary to left shoulder disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The physician should provide an opinion as to whether the Veteran’s right shoulder strain is either (a) caused or (b) aggravated by his service-connected left shoulder disability. The physician should also consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. 2. Schedule the Veteran for a VA peripheral nerve examination to determine whether any hand numbness is related to his right shoulder strain or service-connected left shoulder disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The examiner should provide an opinion as to whether: (a.) The Veteran’s right hand numbness is at least as likely as not due to his right shoulder strain, or either (i) caused or (ii) aggravated by his service-connected left shoulder disability. (b.) The Veteran’s left hand numbness is either (i) caused or (ii) aggravated by his service-connected left shoulder disability. The examiner should also consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. 3. Schedule the Veteran for a VA examination to determine the current severity of his left shoulder disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. In addition, pursuant to Sharp, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide 4. Schedule the Veteran for a VA examination to determine the current severity of his back disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. In addition, pursuant to Sharp, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide. 5. Request an opinion from an appropriate physician, preferably a dermatologist, to address whether the Veteran’s topical treatment (peroxide wash and Retin-A) for his pseudofolliculitis barbae constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs.” The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The physician should provide an opinion as to: (a.) Whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition. (b.) Whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Only the second question needs to be considered if the treatment is systemic. The Board notes that “for a treatment to be systemic, it must affect the entire body in its treatment of the condition.” Thus, the examiner is asked to address how the Veteran’s use of peroxide wash and Retin-A work and how they affect the body as a whole. The size of the skin area applied and the side effects the topical therapy are irrelevant to this consideration. (Continued on the next page)   6. After conducting appropriate development, to include providing the Veteran a formal TDIU claim form (VA Form 21-8940), adjudicate the issue of entitlement to a TDIU. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel