Citation Nr: 18150493 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-15 153 DATE: November 15, 2018 REMANDED Entitlement to an initial compensable rating for tinea cruris and tinea pedis prior to July 27, 2016, and in excess of 30 percent thereafter, is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2003 to July 2004, including service in Southwest Asia, with additional service in the Reserve and the Air National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO). Notably, during the pendency of this appeal, an October 2016 rating decision increased the Veteran’s rating for tinea cruris and tinea pedis from a noncompensable rating to 30 percent, effective July 27, 2016. Thus, the issue has been recharacterized accordingly. 1. Entitlement to an initial compensable rating for tinea cruris and tinea pedis prior to July 27, 2016, and in excess of 30 percent thereafter, is remanded. Throughout the appeal period, VA treatment records show that the Veteran was prescribed clotrimazole 1% topical cream for use twice a day. The November 2014 and July 2016 VA examiners determined that the Veteran used the topical medication on a constant or near-constant duration in the past 12 months. 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. The United States Court of Appeals for Veterans Claims (Court) in Warren v. McDonald, 28 Vet. App. 194, 197 (2016) held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs;” rather, compensation is available for “all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Finally, in Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court 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. Therefore, the Board finds that a VA medical opinion is required to address whether the Veteran’s treatment was like a corticosteroid or other immunosuppressive drug. 2. Entitlement to service connection for sleep apnea is remanded. In the November 2014 VA examination report, the examiner opined that the Veteran’s sleep apnea was not caused by or due to any environmental exposures during his service in Southwest Asia. As rationale, the examiner stated there was no medical evidence that linked sleep apnea with exposure to fumes, dust, smoke, or any other contaminate. In December 2016, the Veteran submitted articles associating the development of sleep apnea with exposure to burn pits. Accordingly, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the Veteran was possibly diagnosed with sleep apnea during his service in the Reserve or Air National Guard, periods of active duty for training (ACDUTRA) should be verified on remand. Any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Verify all periods of ACDUTRA during the Veteran’s Reserve and Air National Guard service, specifically from December 2012 to February 2013. A report outlining the Veteran’s retirement points will not suffice. 4. Then obtain a VA opinion to assess the current nature of the Veteran’s tinea cruris and tinea pedis. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner is asked to address the following: (a) Identify all medications used to treat tinea cruris and tinea pedis since September 2013 and the duration of such treatment, to include but not limited to clotrimazole 1% cream. (b) Indicate whether each medication is topical, corticosteroid, or immunosuppressive. (c) 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) For any topical treatment, including the Veteran’s near-constant use of clotrimazole 1% topical cream two times per day, please address whether such treatment: (1) operates by affecting the body as a whole in treating the Veteran’s tinea cruris and tinea pedis; or (2) is “like or similar to” a corticosteroid or other immunosuppressive drug. A complete rationale should be given for all opinions and conclusions expressed. 5. Then refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s sleep apnea. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea: (a) had its onset in service or during a verified period of ACDUTRA; (b) is otherwise related to active duty or a verified period of ACDUTRA, to include as a result of environmental exposures (e.g., burn pits, oil fires, sand storms) during active duty. In addressing these questions, please consider and discuss: (1) the articles submitted by the Veteran in December 2016, “Sleep Disorders Linked to Burn Pit Environmental Pollution,” “Iraq & Afghanistan Burn Pit Chemical Exposure Cancer & Disease Claims,” and “Military: Burn pits could cause long-term damage to troops;” (2) the Veteran’s reports of having sleep problems, such as snoring and choking, during his service in Iraq; and (3) the various January 2015 lay statements of record. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel