Citation Nr: 18151980 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 18-30 929 DATE: November 20, 2018 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a psychiatric disability is remanded. Entitlement to an initial compensable rating prior to April 12, 2016, and in excess of 30 percent thereafter, for seborrheic dermatitis of the scalp is remanded. REASONS FOR REMAND The appellant was a member of the Puerto Rico Army National Guard. He served on active duty for training (ACDUTRA) from April 2003 to July 2003, and on active duty from July 2006 to November 2007, and from April 2011 to May 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for residuals of TBI and posttraumatic stress disorder (PTSD), and granted service connection for seborrheic dermatitis of the scalp, effective February 19, 2014, with an initial noncompensable rating. The appellant appealed the denials of service connection and the assignment of an initial noncompensable rating for dermatitis in a June 2015 notice of disagreement. Before the appeal was certified to the Board, in an August 2016 rating decision, the RO increased the rating for seborrheic dermatitis of the scalp to 30 percent, effective April 12, 2016. Although a higher rating was granted, the issue remains in appellate status, as described above, as the RO did not assign the maximum schedular rating from the award of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not “abrogate the pending appeal”). 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. The appellant contends he suffered a TBI after an improvised explosive device (IED) exploded near him while he was serving on active duty with the United States Army. He asserts that his service-connected tinnitus and service connected headaches are residuals of an in-service TBI. After a review of the evidence of record, the Board finds that a new opinion is necessary, as the February 2015 examination and opinion are internally inconsistent, and therefore, inadequate. The appellant underwent a VA examination for TBI in February 2015. While the examiner determined that the appellant did not suffer a TBI while on active service, after a review of in-service evaluations and testing performed after the incident the appellant described, the examiner noted the appellant had migraine headaches which were attributable to TBI. Considering this, the Board finds the February 2015 VA opinion inadequate, as it is internally inconsistent in finding the appellant to have residual symptoms of TBI, but then finding he did not suffer a TBI during active service. As such, the Board finds that a new examination is necessary to determine the whether the appellant’s noted migraine headaches are residual effects of a TBI. The Board notes that the appellant is service-connected for tinnitus and for headaches secondary to allergic rhinitis. On remand, the examiner should determine whether these service-connected disabilities are residuals of an in-service TBI. 2. Entitlement to service connection for a psychiatric disability is remanded. As an initial matter, considering the appellant’s other mental health diagnoses, the Board reads the appellant’s initial claim for entitlement to service connection for PTSD broadly and sympathetically as one for entitlement to service connection for a psychiatric disability, to include PTSD, depressive disorder, and anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The appellant contends that he has a psychiatric disability which is causally related to his active service. The appellant asserts that he has PTSD, and that the precipitating stressor of this condition involved being near an IED explosion while deployed on active duty and seeing a local national injured with severe wounds from the explosion. After a review of the evidence of record, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a psychiatric disability because no VA examiner has opined on whether the appellant’s diagnosed depressive disorder and diagnosed anxiety disorder are directly related to his active duty service, to include his combat experiences. While a February 2017 VA examination did consider whether the appellant’s depressive disorder was secondarily related to his already service-connected disabilities, no opinion was provided on whether the condition was incurred during, or is otherwise related to, his active duty service. Further, the Board notes that since the February 2015 VA examination, which did not diagnose the appellant with PTSD, he has been diagnosed with PTSD by a private physician in June 2015, based on the Diagnostic and Statistical Manual of Mental Disorders, foruth edition (DSM IV) criteria. Additional evidence was received in November 2018 that demonstrates the appellant received treatment for PTSD and its symptoms in August 2016. As such, on remand, an examination should be obtained to address whether the appellant’s diagnosed PTSD is causally related to his active duty service, to include his claimed stressor of being near a 2011 IED explosion. 3. Entitlement to an initial compensable rating, and a rating greater than 30 percent from April 12, 2016, for service connected seborrheic dermatitis of the scalp is remanded. The appellant contends that his seborrheic dermatitis is more disabling than initially rated, and more disabling than currently rated. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. In VA examinations conducted in February 2015, July 2015, and July 2016, it was noted that the appellant’s disability requires daily use of a prescription shampoo to treat and manage his symptoms. Despite noting this constant use in the prior 12 months at each examination, no opinion was offered on whether this prescribed shampoo, Ketoconazole, is “like” a corticosteroid or other immunosuppressive drug within the meaning of 38 C.F.R. § 4.118, Diagnostic Code 7806. See Warren v. McDonald, 28 Vet. App. 194 (2016). The Court of Appeals for Veterans Claims (Court) issued a recent decision in 2018 which discusses the factors to be considered in determining whether a topical treatment constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs” under the pre-August 13, 2018 version of Diagnostic Code 7806. Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims LEXIS 1314 (Vet. App. Sep. 28, 2018). In that case, the Court laid out a test for determining whether a treatment is considered systemic therapy, requiring evidence that the topical treatment operates by affecting the body, as a whole, in treating a veteran’s skin condition. If that question is answered in the affirmative, the second factor that should be considered is whether the given treatment is “like” a corticosteroid or other immunosuppressive drug in its use. Considering this, the Board finds that an addendum opinion is necessary to address the question of whether the appellant’s prescribed Ketoconazole shampoo is “like” a corticosteroid or other immunosuppressive drug. Adequate rationale should be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the appellant sustained a TBI during active service and whether he currently exhibits any residuals thereof. In providing the requested opinion, the examiner should clarify whether the Veteran’s service-connected headaches and tinnitus are at least as likely as not residuals of an in-service TBI. An opinion should also be provided on whether the appellant’s reports of tinnitus and headaches after being in close proximity to an IED explosion is evidence of him having suffered an in-service TBI. The examiner should provide a rationale for the opinion with citations to the relevant evidence of record, to include the February 2015 VA examination report in which the examiner noted that the appellant had migraine headaches which were attributable to TBI. Schedule the appellant for a psychiatric examination to determine the nature and etiology of his current psychiatric disabilities, to include PTSD. After examining the appellant and reviewing the record, the examiner should delineate all current psychiatric disabilities and provide an opinion as to whether it is at least as likely as not that each diagnosed disorder is causally related to an in-service injury or disease, to include the appellant’s reported in-service experience of being under hostile fire, and his reported in-service experience of being nearby when an IED exploded that severely wounded a local civilian. As the appellant has already been diagnosed with PTSD, anxiety disorder and depressive disorder, the examiner should address whether these diagnoses are correct and, if so, whether these disabilities are proximately due to the appellant’s active service. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the appellant’s daily use of prescribed Ketoconazole shampoo operates by affecting the body, as a whole, in treating the appellant’s skin condition. The examiner should also opine as to whether the prescribed treatment is “like” a corticosteroid or other immunosuppressive drug in its use in treating the appellant’s seborrheic dermatitis. This medical opinion should be supported by an adequate reasons and bases. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel