Citation Nr: 21003716 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 06-34 409 DATE: January 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for chronic dermatitis is remanded. REASONS FOR REMAND The Veteran had active duty from July 1968 to July 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in June 2018, the Board issued a decision denying the Veteran’s claim for an initial rating in excess of 10 percent for his chronic dermatitis. The June 2018 Board decision observed that, during the Veteran’s January 2015 VA examination, the examiner noted that the Veteran had not been treated with an oral or topical medication for his chronic dermatitis during the preceding year. The June 2018 Board decision also observed that, during the Veteran’s following February 2018 VA examination, he reported using a non-prescription, steroid-free, anti-itch lotion for his chronic dermatitis, and the February 2018 VA examiner noted that the Veteran had not been treated for his chronic dermatitis with any other medication during the preceding year. Having reflected on the findings of the January 2015 and February 2018 VA examiners, the Board determined that, given the percentage of the area of the Veteran’s entire body affected by his chronic dermatitis and the percentage of the affected exposed area, the Veteran’s chronic dermatitis did not warrant an initial rating in excess of 10 percent. The June 2018 Board decision acknowledged the use of the non-prescription lotion but did not find that such a use warranted a higher initial ration because the lotion was a steroid-free, anti-itch lotion, and the Veteran “denied use of any topical cortisone lotion, cream, or treatment.” No further analysis was conducted. The Veteran appealed the June 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2019, the Court vacated the Board’s June 2018 decision and remanded the case for further proceedings, guiding as follows: The Board [acknowledged that the Veteran] “reported use of nonprescription, steroid-free anti-itch lotion for treatment for his dermatitis, [and that] he has denied use of any topical cortisone lotion, cream, or treatment.” . . . The Court holds that remand is warranted because the Board failed to consider whether [the Veteran’s] use of an over-the-counter anti-itch medication is “like” the use of corticosteroids or immunosuppressive drugs. In Warren v. McDonald, [28 Vet. App. 194, 197 (2016),] the Court held that “systemic therapy” in DC 7806 is not limited to corticosteroids or immunosuppressive drugs but that these treatments “serve as examples of the kind and degrees of treatments used to justify a particular disability rating.” Thus, the Court held that the Board must determine whether a given therapy is “like” a corticosteroid or other immunosuppressive drug. [The Board, therefore, should analyze whether the Veteran’s use] of the anti-itch lotion [is] similar to use of a corticosteroid or immunosuppressive drug. Furthermore, in Burton v. Wilkie, [30 Vet. App. 286, 291 (2018),] the Court held that the Board [was] required to consider the factual circumstances by which a topical treatment may be considered a systemic therapy. One such circumstance, the Court held, was the method by which the treatment works and whether it affects the body as a whole to treat the affected area. [Therefore,] the Board must also consider the factual circumstances by which [the Veteran’s] anti-itch lotion operates to treat his dermatitis and whether those circumstances make use of the anti-itch lotion more like a systemic therapy. In June 2020, the Board issued a decision remanding this matter to the RO. The June 2020 Board decision instructed the RO to “[r]eturn the file to the VA examiner who provided the February 2018 VA examination” and requested the examiner to render opinions on the following: [T]he examiner should identify all medications, including prescription and over-the-counter, used to treat the Veteran’s dermatitis, and state whether any medication is “like or similar to corticosteroids or other immunosuppressive drugs.” The mechanism of application and action (how they work) should be discussed. In particular, whether their effect is localized or systemic should be specified. The June 2020 Board decision also provided a brief clarification as to the meaning of the term “systemic,” summarizing the gist of the Court’s November 2019 decision. In October 2020, the RO obtained an addendum opinion from a VA examiner other than the February 2018 VA examiner. The October 2020 examiner, a medical practitioner who specialized in preventive medical care, rather than in chronic or dermatological conditions, stated: The available records do not reflect any treatment for the Veteran’s dermatitis during the time period requested for review . . . . Furthermore, any topical steroid was not likely to have been prescribed (first line agents), given the documented allergy starting in 2003 and lack of clinical documentation that the dermatitis was flaring to a degree that would necessitate treatment. [The October 2020] examiner can review any records of treatments for the Veteran’s dermatitis given during this time period if any records of such treatment are provided. Later in October 2020, the RO issued a Supplemental Statement of the Case (SSOC). Relying on the findings of the October 2020 VA examiner, the RO reiterated its denial of an initial rating in excess of 10 percent for the Veteran’s chronic dermatitis. With that, this matter was returned to the Board for further adjudication. The Board’s review of the October 2020 VA examiner’s opinion establishes that the examiner failed to understand the purpose of the addendum opinion he was requested to provide. Indeed, the Veteran has not asserted – and it does not appear that the record suggests – that the Veteran was prescribed a corticosteroid or any other immunosuppressant medication for treatment of his dermatitis at any point in time, and the record is not in dispute that the over-the-counter anti-itch lotion the Veteran has used contains no corticosteroids or other immunosuppressant. Therefore, the Board directed the RO to obtain an addendum opinion identifying, on the one hand, all non-prescription treatments that the Veteran had for his dermatitis, and – on the other hand – determining whether any of these treatments operated “like” a corticosteroid or any other immunosuppressant in the sense that they could be qualified as a “systemic” therapy because they affected the Veteran’s body as a whole in order to treat the area affected by his chronic dermatitis. Here, the October 2020 VA examiner failed to conduct the requested inquiry. Accordingly, while the Board regrets additional delay, a remand for is required under Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person examination with an appropriate clinician other than the October 2020 VA examiner. Critical here, the clinician should have at least some background in treatment of chronic dermatological conditions. The clinician is requested to identify his/her background in treatment of chronic dermatological conditions. 2. Provide the clinician with the Veteran’s electronic claims file, to include this Remand Order, the Board’s June 2020 Remand Order, and the Board’s June 2018 decision. The clinician is requested to review the claims file and expressly verify that (s)he understands the scope and the purpose of the addendum examination directed in this Remand Order. 3. The clinician is requested to interview the Veteran and, based on the clinician’s review of the claims file and, in addition, the Veteran’s report, compile a full list of all prescription and non-prescription, internal and topical medications and/or other forms of treatment (to include lotions), that the Veteran has utilized for treatment of his chronic dermatitis since February 2004. Critical here, the list should reflect the name of each treatment, the dosage used, the frequency of the use, and the period of use, to include the start date and the end date (in the event the treatment ended). In the event any portion of this information is not available from review of the claims file and cannot be obtained as a result of interview of the Veteran, a statement verifying that the clinician made the appropriate inquiry with the Veteran, and that the Veteran has responded by a statement that he had no recollections as to the requested information should be included in the clinician’s report. 4. Reconcile the Veteran’s subjective reports with the objective findings and provide detailed comments as to whether there are any medical reasons to accept or reject the Veteran’s subjective reports with regard to his asserted usage of prescription and/or non-prescription medications or other forms of treatment (to include lotions) for his chronic dermatitis. The reconciliation analysis should not be limited solely to the name, dosage, frequency and period of use of each asserted treatment; rather, the reconciliation analysis should also include a discussion of whether there are any medical reasons to accept or reject the Veteran’s subjective reports as to the area of the body – and the exposed area – as to which the Veteran asserts use of each particular medication or treatment. In the event the clinician determines that there is no clarity as to the Veteran’s report of the area of the body (or the exposed area), the clinician is requested to direct the Veteran to demonstrate the parameters of the asserted area, and describe the clinician’s observations of the Veteran’s demonstration in the clinician’s report. 5. Upon creating the aforesaid list of prescription and non-prescription medications and treatments, and opining on whether there are any medical reasons to accept or reject the Veteran’s subjective reports, the clinician is requested to opine whether any of the medications or treatments as to which there are medical reasons to accept the Veteran’s subjective reports as to his use of the alleged medications or treatments (to include lotions), qualify as “systemic” in light of the guidance provided in this Remand Order. Critical here, the clinician is requested to opine whether – in light of the Veteran’s specific circumstances – any of these medications or treatments (to include any lotion) has operated, during any period “like” a corticosteroid or any other immunosuppressant in the sense that they could be qualified as “systemic” therapy because they affected his body as a whole in order to treat the area affected by his chronic dermatitis. The specific circumstances and the “systemic” therapy process should be explained in detail. If no such specific circumstances are found, and – in addition – no “systemic” therapy process is detected, both such findings should be expressly made. 6. After completing the foregoing and any other development deemed necessary, re-adjudicate the Veteran’s claim for an initial rating in excess of 10 percent for his chronic dermatitis. 7. If any benefit sought on appeal remains denied, an SSOC should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. 8. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 9. While the law requires that all claims remanded by the Board for additional development must be handled in an expeditious manner, 38 U.S.C. §§ 5109B, 7112, in light of the COVID-19 public health measures undertaken by the Federal government, U.S. States, and municipalities, reasonable accommodations should be made to comply with these measures and ensure the safety of all participants, in light of the complexity and magnitude of the tasks to be completed. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.