Citation Nr: 21068522 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-18 301 DATE: November 10, 2021 ORDER Service connection for a low back disability is granted. A compensable rating for folliculitis is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence supports finding that his low back disability was due to his active-duty service, based on a continuity of symptomatology. 2. The Veteran's service-connected skin condition affected less than five percent of the exposed area and less than five percent of the total body area of his body, and the most probative evidence does not reflect the use of systemic therapy such as a systemic corticosteroid use or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for a compensable rating for folliculitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty from August 1995 to February 1996, from November 2004 to November 2005, and from July 2006 to March 2008. This appeal was previously before the Board in August 2018. The service connection claim for a low back disability was remanded because the Veteran had never been afforded a VA examination for his low back. The increased rating claim for folliculitis was also remanded for a new VA examination to determine the current nature and severity of his service-connected skin condition. The Veteran was afforded VA examinations for his low back disability and the service-connected skin condition in August 2021. He was also provided a VA medical nexus opinion for his low back disability in August 2021. As such, the Board finds that there has been substantial compliance with the August 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2018 Board decision also previously considered the issue of service connection for obstructive sleep apnea (OSA). The Board decision remanded for a VA examination. After the requested development took place, a September 2021 rating decision granted service connection for OSA. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning OSA is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service connection for a back disability is granted. The Veteran asserts that his low back disability is due to his active-duty service. As an initial matter, the Board notes that the Veteran's service treatment records (STRs) are not of record, and not available for review. See VA Memos dated December 2, 2011 and April 23, 2013. The Board notes that both VA Memos were formal findings that the Veteran's STRs were not available from August 1995 to February 1996, from November 2004 to November 2005, and from July 2006 to May 2008. In such cases, the Court has rejected the argument that there should be an "adverse presumption" against VA where service medical records have been lost or destroyed while in the Government's control, including records destroyed in the 1973 fire at the NPRC. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). However, in a case like this in which a veteran's service records are unavailable, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran was afforded a VA examination in August 2021. The examiner noted that the Veteran was diagnosed with degenerative disc disease, intervertebral disc syndrome, and spinal stenosis. The Veteran reported that the onset of his back condition was in 2008, when he suffered a fall injuring his back. However, after an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner based their negative nexus opinion on the fact that the Veteran's STRs did not show complaint, diagnosis, or treatment for a back condition. A review of the Veteran's post-service treatment records shows that he complained of back pain soon after separating from the military. See VA Treatment Records dated August 1, 2008 and September 4, 2008. His VA treatment records in the years following 2008, also show that he has consistently complained of low back pain. Here, the Board acknowledges that the Veteran received a negative nexus opinion by the August 2021 VA examiner. However, the examiner based their negative nexus opinion on the fact that his STRs did not show any in-service incurrences or injuries. The Veteran's STRs have been deemed unavailable, but the Board acknowledges that the Veteran is competent to report that the onset of his back problems was during his active-duty service, in 2008. Here, the Board finds that the only competent evidence of record indicates that the in-service onset of back pain, are those lay statements provided by the Veteran. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that the onset of his back pain was during his active-duty service. The Veteran's post-service treatment records indicates that he has had a continuity of symptomatology, since his active-duty service. Further, the Veteran has been diagnosed with arthritis, which is a chronic disease recognized under 38 C.F.R. § 3.309, for which a continuity of symptomatology would entitle the Veteran to presumptive service connection. See 38 C.F.R. § 3.309. Here, the Veteran is competent to describe this continuity of low back problems, and he competently reported to the August 2021 VA examiner that the onset of his low back pain was during his active-duty service. Further, his contemporaneous post-service treatment records shows that he has voiced complaints of low back pain since his separation from the military and has been diagnosed with arthritis. The Board finds this presentation of evidence to be both competent and credible. The Board finds that the August 2021 VA examiner's negative nexus opinion and the Veteran's presentation of evidence, as to the continuous low back problems and the current diagnosis for arthritis, is at least in relative equipoise and given this conclusion, the Board resolves any reasonable doubt in the Veteran's behalf. Accordingly, service connection for a low back disability is granted. Increased Rating A compensable rating for folliculitis is denied. The Veteran asserts that he is entitled to a compensable rating for his skin condition. His folliculitis is rated under Diagnostic Code 7899-7806, for dermatitis or eczema. VA received the Veteran's increased rating claim for a skin condition in February 2012. A May 2013 rating decision denied his claim. The Veteran disagreed with that decision and this appeal ensued. During the pendency of this appeal, VA amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the prior regulations, Diagnostic Code 7813 directs that the disability be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806) depending upon the predominant disability. Diagnostic Code 7806 provided for a noncompensable disability rating when dermatitis or eczema involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy has been required during the past 12-month period. A 10 percent rating was warranted when the skin condition affected at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids would amount to "systemic therapy." Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "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, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. Under this formula, a maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or (2) 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 are required over a 12-month period. A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over a 12-month period. Id. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over a 12-month period. Id. A noncompensable (0 percent) rating is assigned where there is no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. Id. In this decision, the Board will consider not only the criteria of the currently assigned Diagnostic Codes, but also the criteria of other potentially applicable Diagnostic Codes. The Veteran was afforded a VA examination in January 2013. The examiner only noted the diagnosis for folliculitis. The examiner indicated that the Veteran used a topical medication, a selenium sulfide lotion/shampoo, constantly. The examiner reported that the Veteran did not have any visible skin conditions and did not have any debilitating episodes in the previous 12 months. The August 2018 Board decision noted a March 2017 VA treatment note, that indicated the Veteran had been prescribed a new skin medication for skin tinea and a July 2017 VA treatment note that indicated a skin rash on the left forearm. The Board remanded this issue for a new VA examination to determine the current nature and severity of the skin condition. The Veteran was afforded a VA examination in August 2021 at which he reported experiencing skin eruptions on his trunk and extremities. The Veteran reported that he used doxycycline in the past, and currently used a topical steroid. The examiner noted the use of a topical corticosteroid, clobetasol, for folliculitis. The examiner reported that the total duration of the medication in the past 12 months was, less than 6 weeks. There was no indication of systemic treatments. On examination, the examiner reported that the Veteran's folliculitis affected less than 5 percent of both the total body and the exposed areas. The examiner described the folliculitis as brownish maculo-papular lesions that affected the upper extremities and neck. There was no evidence of scarring. A review of the Veteran's post-service treatment records does not reveal any information that would warrant a compensable rating for a skin condition. The Board notes that the last notation of doxycycline, was in October 2010, prior to the period on appeal. Here, based on the evidence of record, a compensable rating for the service-connected folliculitis under either the prior or new regulations is not warranted. A review of both VA examination reports and the post-service treatment records do not reveal that the folliculitis covered five percent or greater of exposed area or total body area and there is no evidence of scarring or disfigurement. Further, the August 2021 VA examiner reported only a localized application of a topical corticosteroid. The Veteran reported the use of doxycycline, which may be considered a systemic therapy, but the last indication of such use was in 2010, about two years prior to the period on appeal. A review of the records does not appear to show, nor has there been an assertion that the Veteran utilizes, or has utilized during the course of the appeal, systemic therapy for his folliculitis. As referenced above in this decision, the Federal Circuit acknowledged 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Here, the Board finds that although topical corticosteroids have been applied to treat the Veteran's folliculitis, it does not rise to a systemic therapy level based upon the limited area of application. First, as noted above in this analysis, the record indicates only localized application of a topical corticosteroid. Second, at no time during the period on appeal has the Veteran's folliculitis been shown to cover five percent or greater of exposed area or total body area. Additionally, the Board notes that under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "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). Applying the new criteria referenced above, there is no evidence of systemic therapy including, but not limited to, systemic corticosteroid use, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs. Therefore, the criteria for a compensable rating under the prior regulations and the new General Rating Formula for the Veteran's folliculitis skin disability are not met for the period on appeal. See 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806. The Board has considered whether a higher or separate evaluation is available under any other potentially applicable schedular provision. However, neither the Veteran's complaints nor medical findings more nearly reflect the criteria for a higher evaluation under any other skin Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Codes 7807-7833. Here, the Board would like to express that it is sympathetic towards the Veteran's claim. The Board acknowledges that the Veteran's skin disability causes him discomfort. However, the Board is bound by the rules and regulations governing how disabilities are rated. Although the Board recognizes that the Veteran's service-connected skin disability causes him discomfort, the evidence does not support an increased rating. The evidence of record has established that the Veteran's service-connected folliculitis affected less than five percent of the exposed area and less than five percent of the total body area of his body, and the most probative evidence does not reflect the use of systemic therapy or systemic corticosteroid use or other immunosuppressive drugs. Accordingly, a compensable rating for the service-connected skin condition is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.