Citation Nr: 21004361 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-02 472 DATE: January 26, 2021 ORDER A compensable rating for tinea versicolor is denied. A 30 percent rating for migraine headaches as of September 5, 2018, is granted. REMANDED A compensable rating prior to March 25, 2019, and a rating higher than 10 percent thereafter for right eye keratitis with corneal scarring is remanded. A compensable rating for residuals of right thumb fracture is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that during the appeal period, the Veteran’s tinea versicolor has manifested in a rash on at least five percent of total body area; treatment for the tinea versicolor has not consisted of systemic therapy. 2. Prior to September 5, 2018, the preponderance of the evidence is against a finding that the Veteran’s migraine headaches manifested by characteristic prostrating attacks averaging more than one in 2 months. 3. Resolving all reasonable doubt in favor of the Veteran, as of September 5, 2018, the Veteran’s migraine headaches more nearly approximate characteristic prostrating attacks averaging once a month. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for tinea versicolor are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813. 2. Prior to September 5, 2018, the criteria for a rating higher than 10 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8100. 3. As of September 5, 2018, the criteria for a 30 percent rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to July 2008. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Tinea versicolor The Veteran contends that a compensable rating is warranted for tinea versicolor. The disability is rated under DC 7813, for dermatophytosis. 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 7813 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. 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. 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. At a February 2013 VA examination, the Veteran reported that he has flareups of tinea versicolor when the weather gets hot or he sweats. He reported no current problems as the weather was cool. On examination, the examiner found no evidence of tina versicolor. The examiner found that the condition did not cause any scarring or disfigurement and did not have any systemic manifestations. The Veteran was not currently under any treatment for the condition, but he had used oral antifungal medication for less than six weeks in the past 12 months. The examiner noted no functional impact on the Veteran’s ability to work due to the tinea versicolor. At a March 2019 VA examination, the Veteran reported that he got red blotches on the skin of his arms and trunk of the body when the weather was hot or humid. At times, he experienced stinging in the areas when discoloration occurs. The Veteran reported no specific medications used for the tinea versicolor. On examination, the examiner found no evidence of tinea versicolor. The examiner confirmed that the Veteran did have a skin condition without any visible characteristic lesions at the time of examination. The examiner found that the skin condition had not caused any scarring or disfigurement. The examiner also found no functional impact due to the skin condition. VA and private medical records of evidence are consistent with the VA examination reports. A July 2012 VA medical record noted a macular papular distribution on the lower sacral region midline between the top gluteal folds, measuring 3 cm by 3 cm. There was no ecchymosis noted at that time. No other medical records during the appeal period indicate active tinea versicolor, including those from the summer months. After review of the record, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under both the old and new regulations. The Veteran’s tinea versicolor does 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; require 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. The Veteran’s tinea versicolor was quiescent during both VA examinations. However, other medical evidence of record does not support a finding that the tinea versicolor affected an area of at least 5 percent, even when active. The only record showing active lesions measured 3 cm by 3 cm on a non-exposed area of the body. Further, neither examiner found that the skin condition required systemic therapy or had systemic manifestations. At the most recent examination, the Veteran reported that he was not using any specific medications for the tinea versicolor. While the Board is sympathetic to the fact that neither VA examination was performed during a flareup of the Veteran’s skin condition, the Veteran was encouraged to submit evidence of the affect of the skin condition during flareups. No evidence was received by the Veteran illustrating symptoms during active tinea versicolor. 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 diagnostic codes 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 diagnostic code. 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for tinea versicolor, and therefore, the claim for increased rating must be denied. 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. Migraine headaches The Veteran contends that his migraine headaches warrant a higher rating. Specifically, the Veteran submitted statements reporting that he experiences migraine headaches “a couple times a month” which cause him to be totally incapacitated or bedridden. The Veteran’s migraine headaches are currently rated 10 percent disabling under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent. The Rating Schedule does not define prostrating, nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999). Severe economic inadaptability is also not defined in VA statutes or regulations. Pierce v. Principi, 18 Vet. App. 440 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. If economic inadaptability were read to import unemployability, then if the appellant, met the economic-inadaptability criterion, the appellant would be eligible for TDIU rather than only a 50 percent rating. 38 C.F.R. § 4.16. Consideration must also be given as to whether the disability can produce severe economic inadaptability, regardless of whether the disability was causing severe economic inadaptability. VA conceded that the words productive of could be read to mean either producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440 (2004). At a February 2013 VA examination, the Veteran reported that he experienced migraine headaches four to give times per month, varying in intensity. Sometimes the migraines were accompanied by nausea, vomiting, and light sensitivity. The examiner noted symptoms including headache pain during migraines, which worsened with physical activities. The examiner also noted non-headache pain symptoms including nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner found that the Veteran experienced characteristic prostrating attacks of migraine headache pain once in two months, but not very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. Functional impact on the Veteran’s ability to work was found in the form of having to leave work and go home when he has severe migraines. At a March 2019 VA examination, the Veteran reported migraines two to three times per month, varying in severity. The Veteran reported taking prescription medicine for migraines. He sometimes experienced light and sound sensitivity and nausea during episodes of migraine. The migraines lasted one to two days if the Veteran took his medication at the start of the migraine. The examiner noted symptoms including headache pain during migraines, which worsened with physical activities. The examiner also noted non-headache pain symptoms including nausea, sensitivity to light and sensitivity to sound. The examiner found that the Veteran experienced characteristic prostrating attacks of migraine headache with less frequent attacks, but not very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. No functional impact on the Veteran’s ability to work due to migraines was found. In a September 2018 statement, the Veteran reported that he experiences headaches one to two times per week, with headache pain causing total incapacitation at least “a couple times” per month. During the headaches, the Veteran reported he experienced throbbing and/or pulsating pain, light sensitivity, noise sensitivity, visual spots, nausea and vomiting. The Veteran estimated that he had missed approximately 15 days of work in the last year due to migraine headaches. He also stated he has missed events and activities due to headaches when they render him unable to function. Based on the lay statement of the Veteran, a private medical determination was made by a nurse practitioner in which she found that the Veteran experienced prostrating attacks of headache pain at least once or twice a month. VA and private medical evidence of record does not provide any findings regarding the frequency or severity of the Veteran’s migraine headaches. After review of the record, the Board finds that as of September 5, 2018, the evidence is in relative equipoise regarding whether the Veteran’s migraine headaches cause characteristic prostrating attacks averaging once a month. At the March 2019 VA examination, the Veteran reported that he experienced two to three migraines per month varying in severity. In a separate statement prior to the VA examination, the Veteran reported that “a couple” times per month, he was bedridden or totally incapacitated due to migraine headaches. This was confirmed by the private medical determination, which found that the Veteran experienced prostrating attacks once or twice a month. The Board notes that earlier evidence of record indicates that the Veteran had missed work or left work early due to migraine headaches. Based on the evidence, the Board finds that a 30 percent rating is warranted for the Veteran’s migraine headaches as of September 5, 2018. However, the Board finds that the preponderance of evidence is against a finding that a higher 50 percent rating is warranted, as both VA examiners explicitly found that the Veteran’s migraines did not cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, the Board finds that a higher 30 percent rating is warranted for the Veteran’s migraine headaches as of September 5, 2018. However, a preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted at any time during the appeal period. REASONS FOR REMAND Right eye keratitis with corneal scarring In February 2020, the Board remanded the above appeal instructing the RO to obtain eye records stored in Vista Imaging dated from 2009 onward and associate those records with the file. The Remand noted at least one such record pertaining to the Veteran’s eyes. In an April 2020 notice, the RO notified the Veteran that complete VA Medical Center Records for eye related issues from January 1, 2009, to May 24, 2010, were requested, but that the records were not available for review. The RO noted that the claim file contains documentation of the written and telephonic efforts made to obtain the records. The Board finds that there has not been substantial compliance with the prior Board Remand. Stegall v. West, 11 Vet. App. 268 (1998). The claims file does not contain documentation of attempts to obtain the records. Further, it is unclear from the April 2020 notice whether Vista Imaging records specifically were requested. Therefore, remand is necessary to attempt to obtain these records and properly document such attempts. Residuals of right thumb fracture In February 2018, the Board remanded the above claim for a new VA examination because the prior VA examination did not properly address the Veteran’s reports of flareups in accordance with the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Specifically, the Remand stated that the Veteran reported intermittent episodes of painful motion and stiffness, however the prior VA examiner stated that the Veteran did not report flares of the disability. A new VA examination was obtained in March 2019. Again, the Veteran reported episodic stiffness and pain in the thumb, however the VA examiner noted “No,” that the Veteran did not report flare-ups of the thumb. The Board finds that there has not been substantial compliance with the previous Remand, and remand is again necessary to obtain a VA examination that discusses the reported flareups consistent with Sharp. The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. All records related to the Veteran’s eyes which have been stored in VISTA Imaging or any other separate records storage since 2009 must be separately obtained for inclusion in the Veteran's claims file. All attempts to obtain these records should be documented in the Veteran’s claims file. 2. Schedule the Veteran for a VA examination with an examiner that has not previously examined him to determine the current severity of his right thumb disability. Efforts should be made to schedule the examination during a time of flare-up, if possible. The examiner must review the claims file and should note that review in the report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must offer an opinion as to whether there are additional limits on functional ability during flare-ups. Specifically, comment upon the functional impairment caused by any right thumb disability during flare-ups, including consideration of the frequency, duration, characteristics and severity of the flare-ups. If the examination is not conducted during a flare-up, the examiner is specifically directed to ascertain adequate information regarding any flare-ups by any available means, to include the Veteran’s lay statements and all other evidence of record. The examiner should provide a complete rationale for any opinions provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.