Citation Nr: 21003093 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-10 499 DATE: January 19, 2021 ORDER Entitlement to an initial compensable rating for dermatitis for the period prior to September 14, 2020, is denied. Entitlement to a rating greater than 10 percent disabling for dermatitis for the period from September 14, 2020, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 19, 2017, is remanded. FINDINGS OF FACT 1. The Veteran’s dermatitis, during the period prior to September 14, 2020, did not affect at least five percent of the total body, or exposed areas, or require intermittent systemic therapy. 2. The Veteran’s dermatitis for the period from September 14, 2020, affects at least five percent, but less than 20 percent, of the entire body and did not require six weeks or more of systemic therapy. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for dermatitis for the period prior to September 14, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7806. 2. The criteria for a rating in excess of 10 percent for dermatitis for the period from September 14, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1990 to May 1990 and September 1990 to March 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board, most recently in December 2018, when it was remanded for VA examinations. Entitlement to an initial compensable rating for dermatitis for the period prior to September 14, 2020, and greater than 10 percent disabling since September 14, 2020, is denied. The Veteran contends that he is entitled to a higher rating because, as the Veteran testified in April 2018, the skin condition disability was getting worse. The Veteran’s skin condition is rated under DC 7806 for dermatitis or eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under DC 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or 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 required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824.   Prior to September 14, 2020 Prior to September 14, 2020, the evidence of record demonstrates that the predominant disabilities were dermatitis and prurigo nodularis. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations for this period because the Veteran’s dermatitis and prurigo nodularis did not more nearly approximate at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. In February 2017, the Veteran was granted a noncompensable disability evaluation of dermatitis, effective July 17, 2009. A June 2010 VA examiner was not able to determine whether the Veteran’s disability pattern, including dermatitis, were related to specific exposures during the Veteran’s military service without resorting to mere speculation at the time. November 2010 VA treatment records showed “no suspicious lesions or rash.” June 2012 private records showed skin was “warm, dry with normal turgor” with “normal color with no rashes, no lesions, and no evidence of cellulitis.” February 2015 private treatment records was “negative” for acute changes, with “normal” skin color, temperature, and moisture. Between February 2018 and February 2019, he sought private skin treatment, including injections and topical ointments. In February 2019, the Veteran stated that the prurigo nodularis had resolved. The March 2019 VA examination showed that the Veteran was treated with constant or near-constant topical medications, including “clotrimazole, terbinafine 1% cream, petrolatum 49% zinc oxide, urea 20% cream, vitamin A and D ointment, hydrophilic petrolatum, colloidal oatmeal bath, clotrimazole, and HC 1%/praxomine 1% topical cream.” The VA examination showed dermatitis caused dry skin all over arms, legs, chest, and back affecting less than five percent of the Veteran’s total body, but no exposed areas. The prurigo nodularis caused open sores on trunk and leg affecting less than five percent of the Veteran’s total body, but no exposed areas. May 2019 VA treatment records showed the Veteran’s skin was warm, moist, and supple with no open lesions on feet. August 2019 VA treatment records showed superficial cracking of the Veteran’s feet, keloids on abdomen, and dry skin on elbows. October 2019 VA treatment records showed multiple one- by one-inch raised, hyperpigmented lesions on arms, back, trunk with some open wounds, but no drainage, erythema, or warmth. In December 2019, the Veteran reported to a VA physician occasional skin lesions that develop into pustules and drain. Between April and August 2020, he had VA treatment for surgical wound care. Prior to September 14, 2020, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s dermatitis and prurigo nodularis does not more nearly approximate characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12-month period. The VA examiner found no scars and opined that the Veteran’s skin condition would have no impact on the Veteran’s functional ability to work. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include the April 2018 hearing testimony, and the Veteran’s reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran’s self-report of symptoms and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other DCs related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different DC. See 38 C.F.R. § 4.118. The March 2019 VA examiner found no scars and opined that the Veteran’s skin condition would have no impact on the Veteran’s functional ability to work. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for dermatitis and prurigo nodularis prior to September 14, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From September 14, 2020 From September 14, 2020, the evidence of record demonstrates that the predominant disability is dermatitis. In September 2020, the Veteran underwent a VA examination. The Veteran reported that he was seen for sick call in Saudi Arabia and was given some cream. The Veteran reported that this was not helpful. The Veteran reported that after separation the rash stayed about the same: itchy and oozing. The Veteran reported that he has had the rash since then. The Veteran reported that he saw a dermatologist and was treated with topicals, but it never really gets any better. The September 2020 VA examiner diagnosed dermatitis. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations for this period because the Veteran’s dermatitis does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. The September 2020 VA examination showed that the Veteran was treated with six weeks or more, but not constant, of topical steroids. The VA examination showed dermatitis caused patches of white flaky or dry skin on the Veteran’s head, abdomen, and legs affecting between 5 and 20 percent of the Veteran’s total body, but less than 5 percent of exposed areas. From September 14, 2020, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s dermatitis does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms and the Veteran’s reports are credible. Jandreau, 492 F.3d at 1377. However, the Veteran’s self-report of symptoms and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other DCs related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different DC. See 38 C.F.R. § 4.118. The September 2020 VA examiner found no scars or disfigurement of the head, face, or neck and opined that the Veteran’s skin condition would have no impact on the Veteran’s functional ability to work. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 10 percent for dermatitis from September 14, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2020, a VA examiner opined that the Veteran’s obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The October 2020 VA examiner explained: There is no evidence of obstructive sleep apnea while in service. The condition was not diagnosed until 2003, per records citing the 2003 sleep study. No nexus is established in service, and there is no evidence of care until 2003. It is unlikely the condition would not have manifest earlier if it had its nexus in service. Therefore, it is less likely than not that the veteran's OSA had its nexus while in service. There are no specific symptoms cited in the claim, but snoring, difficulty falling asleep, awakening, daytime fatigue, etc. are nonspecific and can be attributed to other causes. Some of these are poor sleep hygiene, alcohol or drug use, sinus conditions, psychological sleep disorders, shared quarters, etc. The veteran was noted to have no residual symptoms, evidently due to treatment with CPAP, per the DBQ. The record also contains similar June 2010 and March 2019 VA medical opinions. The opinions, however, do not consider all the relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). In July 2017, for example, a VA examiner credited the Veteran’s medical history and reached the opposite conclusion: “that the veteran’s diagnosis of sleep apnea had its onset during active duty or within one year of discharge as evidenced by daytime hypersomnolence in 1991.” The July 2017 VA examiner explained: The veteran was discharged from the Army in 1991 following the Veteran’s return from the Gulf War, the veteran began to experience poor sleep patterns with hypersomnia during the daytime. He stated that on one occasion he fell asleep while operating a forklift in 1991 causing an accident. This is a classic symptom of daytime hypersomnolence which would indicate that the Veteran’s sleep apnea more than likely was present during or shortly after the Veteran’s discharge from service. Certainly within one year of the Veteran’s discharge, although the condition was not diagnosed until 2003. The October 2020 VA examiner did not acknowledge or address this conflicting medical evidence, much less, resolve the inconsistency. An addendum VA medical opinion is warranted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 19, 2017, is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for OSA could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims to the extent possible. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s obstructive sleep apnea. The examiner must review the claims file, including the July 2017 VA medical opinion. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is obstructive sleep apnea at least as likely as not related to service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran’s description of in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of the Veteran’s current disability, this should be noted. Stated another way, do the Veteran’s reports about symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Once the above development has been substantially completed, obtain an addendum opinion from an appropriate clinician regarding TDIU. The examiner should consider the Veteran’s educational, vocational, and employment history and should note complaints regarding the impact of disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected disabilities between January 2014 and January 19, 2017. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU prior to January 19, 2017. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.