Citation Nr: 21073545 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-12 733 DATE: December 9, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected dermatitis is denied. REMANDED 1. The issue of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, anxiety, and mood disorder, is remanded. 2. The issue of entitlement to service connection for a lumbar spine disability is remanded. 3. The issue of entitlement to service connection for a right hip disability is remanded. 4. The issue of entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. 5. The issue of entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's service-connected dermatitis has not affected 20 percent or more of his entire body or exposed areas, or required systemic therapy, and did not result in disfigurement, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to June 1978. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from February 2010, August 2013, and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota and Phoenix, Arizona. Jurisdiction currently is with the RO in Phoenix, Arizona. In August 2017 and January 2021, the Veteran and his wife testified at Board hearings before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the claims file. In August 2018, the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a May 2019 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's August 2018 decision as to this issue and remanded the case for action consistent with the JMPR. Additionally, in the August 2018 decision, the Board remanded the remaining issues on appeal for further development. The Board notes that the issue of entitlement to service connection for a left hip disability was previously remanded. A May 2020 rating decision granted service connection for the left hip disability and awarded a 10 percent disability rating effective May 1, 2012. As this represents a full grant of the benefit sought, the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Increased Rating Entitlement to an initial rating in excess of 10 percent for service-connected dermatitis is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2019); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same manifestation of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2019). By way of history, the Veteran was awarded service connection for dermatitis in a February 2010 rating decision, which assigned a 10 percent evaluation effective January 14, 2009. The Board notes that the condition has been rated pursuant to 38 C.F.R. § 4.118, DC 7806. During the period on appeal, the rating criteria related to skin conditions were amended, effective August 13, 2018. For claims pending prior to the effective dates, ratings will be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. However, any rating under the revised criteria may not be awarded prior to the date the revised criteria went into effect. Prior to August 13, 2018, a 10 percent evaluation under DC 7806 was assigned when the condition covered 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; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation was warranted if the skin condition covered 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation was warranted if the skin condition covered 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. 38 C.F.R. § 4.118, DC 7806. Under the new General Rating Formula for the Skin, pursuant to DC 7806, a 10 percent rating will be assigned if the disability meets 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 will be assigned if the disability meets 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; 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 will be assigned if the disability meets one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas; or constant or near-constant 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 or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Also, under the new General Rating Formula for the Skin, the rating criteria notes that for the purposes of that section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. DC 7806 also provides that dermatitis may be rated under DCs 7800-7805, depending on the predominant disability. Such DCs provide compensable ratings for disfigurement of the head, face, or neck (DC 7800), scars that are at least six square inches (39 sq. cm) (DCs 7801, 7802), or scars that are unstable or painful (DC 7804). Additionally, DC 7805 provides that any disabling effect not considered in a rating provided under DCs 7800-04 should be evaluated under an appropriate DC. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. The Veteran generally contends that his dermatitis affects between 40 and 50 percent of his body and, as such, he is entitled to an initial rating in excess of 10 percent. See January 2021 Board Hearing Transcript p. 23. He further reported that his condition was exacerbated by warm weather and that he was treated with prescription topical ointments. Id. at 25-27. In November 2009, the Veteran underwent a VA examination to evaluate his skin condition. He reported an intermittent rash that was treated topically with hydrocortisone ointment for more than 6 weeks in the past 12 months. The examiner noted that the dermatitis covered between 5 percent and less than 20 percent of the Veteran's total body area and none of his exposed body area. In April 2012, the Veteran was afforded another VA dermatological examination. He described experiencing lesions on his bilateral legs and forearms, which appeared in the warmer weather. He reported last using a topical steroid cream one year prior to the examination and had not undergone any type of treatment in the previous 12 months. The skin condition did not result in any scarring and the Veteran did not experience any systemic manifestations due to his dermatitis. He denied having any debilitating or non-debilitating episodes related to his skin condition. The examiner indicated that the dermatitis covered between 5 percent and less than 20 percent of the Veteran's total body area and none of his exposed body area. In January 2019, the Veteran underwent a third VA examination. He reported experiencing flare-ups of the skin condition during the summer months on his bilateral arms and legs. The examiner noted that the Veteran was treated with topical corticosteroids, specifically hydrocortisone ointment, on a constant or near constant basis. He had not undergone any other treatments or procedures in the previous 12 months. The examiner noted that there were no visible skin lesions at the time of the examination and the condition did not cause any scarring. Most recently, the Veteran attended another VA dermatological examination in January 2021. He described experiencing outbreaks of the condition between May and October. He reported using a topical treatment, including hydrocortisone ointment on a constant to near constant basis, as well as Benadryl for 6 weeks or more, but not constantly. The examiner further noted that the Veteran had been prescribed Prednisone, which was taken orally for 10 days in July 2020. He had not undergone any other treatments or procedures in the previous 12 months. The report noted that less than 5 percent of both the total and exposed body area was affected by the dermatitis. After a full review of the record in conjunction with the applicable laws and regulations in effect throughout the period on appeal, the Board finds that a rating in excess of 10 percent for the service-connected dermatitis is not warranted. Turning to the rating criteria in effect prior to August 12, 2018, throughout the period on appeal the evidence of record does not show that the service-connected dermatitis affected 20 percent or more of the Veteran's exposed body areas or entire body. Specifically, during the November 2009 and April 2012 examinations, the dermatitis was found to cover between 5 to less than 20 percent of the Veteran's total body area and none of his exposed body area. During the January 2019 VA examination, no current manifestations of dermatitis were found. Finally, during the January 2021 VA examination, the Veteran's dermatitis was found to cover less than five percent of his total and exposed body area. Accordingly, absent evidence showing that the service-connected dermatitis has covered 20 percent or more of the Veteran's entire body or exposed areas, a rating in excess of 10 percent disabling based on that rating criteria is not warranted. Additionally, during the period on appeal, the record shows that the Veteran has been prescribed only topical ointments. At the April 2012 examination, he reported using a hydrocortisone ointment, but had not used the medication in the past 12 months. During the January 2019 VA examination, the Veteran was being treated with constant or near-constant topical hydrocortisone ointment, with no other treatments or procedures other than topical medications identified. Lastly, during his January 2021 VA examination, the Veteran reported using hydrocortisone ointment on a constant or near-constant basis, as well as topical Benadryl for 6 weeks or more, but not constantly. The examiner also noted that the Veteran had been treated with Prednisone, which he had taken orally for a period of 10 days in July 2020. In this case, the record clearly shows that the Veteran's treatment primarily included combinations of topical creams and ointments. Additionally, neither the Veteran nor his representative have asserted that the use of such topical medications was administered on a large enough scale to affect the body as a whole as to fit the definition of systemic therapy. Accordingly, the Board finds that the Veteran's use of topical creams and ointments were not systemic therapy. Additionally, the Board notes that the Veteran was prescribed Prednisone, which the examiner noted was taken orally for a period of 10 days. As this medication, which is classified as a corticosteroid or other immunosuppressive drug, was taken for a total duration of less than 6 weeks over the past 12-month period, this systemic treatment would not warrant the next higher 30 percent rating under DC 7806. Lastly, turning to the rating criteria in effect as of August 13, 2018, the Board finds that a rating in excess of 10 percent is not warranted. In this regard, the Board notes that the revised regulation did not change the substance of the criteria for evaluation in this case. Specifically, as noted above, the revised regulation assigns a 30 percent evaluation for a skin condition with at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or systemic therapy including corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more over the past 12-month period. As the Veteran's skin condition has not been shown to cover 20 percent or more of his total or exposed skin area or required systemic therapy for a total duration of 6 weeks or more, a rating in excess of 10 percent under the new criteria is not warranted. The Board has also considered the applicability of other potential DCs referable to the evaluation of skin disabilities. Indeed, in January 2021, the Veteran was afforded a VA examination to evaluate the scarring related to his service-connected dermatitis. However, as the evidence of record fails to demonstrate that the Veteran's dermatitis results in disfigurement, symptomatic scarring, scarring of a size so as to warrant a compensable rating, or additional functional impairment, he is not entitled to a higher or separate rating under DCs 7800-7805. In this regard, the January 2021 VA examiner reported that there was no disfigurement of the head, face, or neck, no scars that were at least six square inches (39 sq. cm) no scars that were unstable or painful, and no related functional impairment. As such, the Veteran is not entitled to a higher or separate rating under DCs 7800-7805. In sum, the Board finds that during the period on appeal, the preponderance of the evidence is against an initial rating in excess of 10 percent for dermatitis. The claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.118; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. The issue of entitlement to service connection for an acquired psychiatric disorder is remanded. A review of the record reveals that the Veteran has asserted that he developed a psychiatric disorder as a result of having a gun drawn on him by a fellow servicemember while on active duty. See January 2020 Board Hearing Transcript p. 14-16. He stated that they were both disciplined as a result of this incident. Id. In the May 2019 JMPR, the parties agreed that the Board must consider the applicability of Molitor v. Shulkin, 28 Vet. App. 397 (2017) in this case. The issue in Molitor, was whether VA's "duty to assist requires VA, in a claim for service connection for a psychiatric disorder, to attempt to obtain records of servicemembers other than the claimant to aid in corroborating a claimed personal assault." See Molitor, 28 Vet. App. at 408. The Court held that, when the claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records, or at a minimum, to notify the claimant why it will not undertake such efforts. Id. at 410. Here, the Veteran reported a fellow servicemember, a sentry, pointed a gun at him while on duty in the Spring of 1977 and along with the Veteran, was later charged with an Article 15 and the other person was discharged from service. The Veteran has not been given the opportunity to identify the other service member, whose records may support the occurrence of this event. The Veteran should be afforded another opportunity to adequately identify this person, and if the Veteran provides adequate identifying information of the servicemember, and if the event is not otherwise reasonably verified, then the RO should undertake appropriate development to ascertain whether the identified individual's service personnel records show he was disciplined as the Veteran reports. If that is the case, a memorandum should be prepared that documents that finding, and placed in the Veteran's claims file. With respect to the Veteran's own records, the Board notes that in July 1976, he was charged under the UCMJ for misbehavior of a sentinel. While this was approximately a year before the Veteran recalled the stressor incident occurred, given the nature of the infraction, and the Veteran's contended stressor, efforts should be made to obtain any other available record regarding this charge. Additionally, the claims file indicates that the Veteran sought treatment at the Palo Verde Behavioral Health clinic in Tucson, Arizona. It does not appear that these records have been associated with the claims file and this evidence may be relevant to the Veteran's claim. Thus, on remand, the RO should attempt to obtain these outstanding records. After this development, the Veteran should be examined for VA purposes to identify his psychiatric diagnoses, and to ascertain whether in retrospect, the Veteran's in-service behavior as documented in his service personnel records shows an early manifestation of any later diagnosed psychiatric disability. 2. The issues of entitlement to service connection for lumbar spine and right hip disabilities are remanded. At the January 2021 Board hearing, the Veteran contended that his right hip and lumbar spine disabilities are directly related to his military service. See January 2021 Board Hearing Transcript p. 3-4. Specifically, he attributed these conditions to running, physical training, and jumping out of helicopters and moving vehicles. Id. at 7. Although the Veteran has been afforded previous VA examinations for these claimed disabilities, the opinions address the issue of secondary service connection in relation to the service-connected right knee disability. An opinion should be obtained regarding direct service connection. 3. The issue of entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. At the January 2021 hearing, the Veteran testified that his hearing loss had worsened and that it had begun to disrupt his family interactions and social life. See January 2021 Board Hearing Transcript p. 20-22. Based on the Veteran's testimony of worsening symptomatology, the medical evidence of record, and the fact that his last VA examination related to his bilateral hearing loss took place in January 2019, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected bilateral hearing loss. 4. The issue of entitlement to a TDIU is remanded. The appeal regarding a TDIU is inextricably intertwined with the pending service connection and increased ratings claims that have been remanded for further development. Thus, the Board must defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant medical records he wishes VA to consider in connection with his appeal, which records should be sought. The Veteran should be specifically asked to provide authorization for VA to obtain his treatment records from the Palo Verde Behavioral Health clinic. If any requested records cannot be obtained, the Veteran should be informed; and told of the efforts made and the further actions that will be taken with regard to the claim. The Veteran may submit medical records directly to VA. 2. Attempt to obtain all the available records surrounding the offense and punishment identified in the Veteran's personnel records as a violation of "UCMJ Art 113 to wit: Misbehavior of sentinel. 760708 Awarded RED to LCpl and 14 das restriction without suspension from duty. RED to LCpl suspended for a period of 06 months. Awd at COP on 760708. Not appealed. Rpt on UD#066-76 dtd 760708." 3. If the information obtained concerning the Veteran's 1976 violation of the UCMJ for misbehavior of a sentinel does not corroborate the claimed stressor that another service member pointed a weapon at the Veteran when they were on guard duty, give the Veteran additional opportunity to provide information identifying the servicemember who pointed a gun at him while on duty, including the approximate date of the reported incident. Then, undertake appropriate development to verify whether the person identified was disciplined under the circumstances as the Veteran reports. If that is the case, a memorandum should be prepared that documents that finding, and placed in the Veteran's claims file. 4. Schedule the Veteran for a psychiatric examination. His claims file should be provided to the examiner. The Veteran's psychiatric diagnoses should be identified. If the Veteran is considered to have PTSD, the stressors that produced it should be identified. In addition, the examiner is asked to provide an opinion addressing whether in retrospect, the Veteran's in-service behavior as documented in his service personnel records shows an early manifestation of any later diagnosed psychiatric disability. 5. Arrange for the claims file to be reviewed by a qualified VA person for an addendum opinion regarding the Veteran's lumbar spine and right hip disabilities. Any additional VA in-person examination is left to the discretion of the opinion provider. After a review of the claims file, the reviewing examiner is requested to furnish an opinion that addresses the following: (A) The examiner should identify all orthopedic disabilities related to the lumbar spine and right hip. (B) The examiner should render an opinion as to whether it is at least as likely as not that any diagnosed lumbar spine disability had its onset in service or is otherwise medically related to service. (C) The examiner should render an opinion as to whether it is at least as likely as not that any diagnosed right hip disability had its onset in service or is otherwise medically related to service. A complete rationale for all opinions offered should be provided. 6. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected bilateral hearing loss. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran's bilateral hearing loss. 7. Re-adjudicate the appeal. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.