Citation Nr: 21074144 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-05 549 DATE: December 14, 2021 ORDER Entitlement to an initial compensable evaluation for dermatitis is denied. FINDING OF FACT The objective medical evidence shows at no time during the appeal period did signs or symptoms of the Veteran's atopic dermatitis more closely approximate 5 percent or more of the entire body or the exposed areas affected, and no more than topical therapy was required during the past 12-month period. CONCLUSION OF LAW The criteria for an initial compensable evaluation for service-connected dermatitis have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code (DC) 7806 (2021); 38 C.F.R. § 4.118, DC 7806 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from September 1980 to September 1984. These matters are before the Board of Veterans' Appeals (Board) from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. According to the Veteran's January 2016 VA Form 9, Appeal to Board of Veterans' Appeals, he requested a Board videoconference hearing. However, the Veteran, through his representative, withdrew his hearing request in an August 2018 communication. There are no additional hearing requests in the record; therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (e) (2019). The Board previously remanded this case for additional development in April 2020 and in March 2021. The matter has now returned to the Board for appellate review. 1. Entitlement to a compensable evaluation for dermatitis The Veteran's service-connected dermatitis is currently rated as noncompensable and the Veteran contends that it warrants a compensable rating for the entire period on appeal. The Veteran's dermatitis is rated under Diagnostic Code 7806. 38 C.F.R. § 4.118. 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 Diagnostic Code 7806, a noncompensable rating applies 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 was required during the past 12-month period. A 10 percent rating applies when 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for total duration of less than six weeks during the past 12-month period. A 30 percent rating applies when there is 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 maximum 60 percent rating applies when 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, Diagnostic Code 7806 (2018). 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 Diagnostic Codes 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, 7810 (2021). If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Turning to the record, the Veteran was afforded a VA examination in February 2014. At the time of the examination, a diagnosis of dermatitis was rendered. The Veteran reported treatment as using topical corticosteroids at a constant/near-constant rate. Physical examination revealed dermatitis on less than 5 percent of the total body area and exposed area. In April 2020, another VA examination was conducted in connection with the Veteran's claim. A diagnosis of contact dermatitis was rendered. The Veteran reported that he developed a rash in service, which was diagnosed as contact dermatitis. Further, the Veteran indicated that he was not currently on any treatments for a skin disorder. A review of the record indicated that this condition resolved and was not present at the time of separation. The Veteran reported that since service, he has had intermittent episodes of dryness of the skin on the back of his hands. He stated that occasionally he will have symptoms on his face, but that these skin lesions were not currently visible. He further reported that he did not take medication for this claimed condition. The examiner noted that there were no current manifestations of a skin condition on examination, and there was thus no pathology on which to render a current diagnosis of a skin condition. In July 2021, an addendum VA medical opinion was obtained pursuant to the Board's March 2021 remand. After reviewing the record, the examiner determined that there was no evidence of a skin condition with a systemic effect. Moreover, the examiner indicated that the evidence of record also did not show any dermatitis disorder. In light of the evidence as set forth above, the Board finds that the Veteran's service-connected dermatitis does not objectively warrant a compensable rating or higher under the applicable criteria, to include as amended after August 13, 2018. Specifically, at the time of the February 2014 VA examination it was reported that less than 5 percent of the Veteran's body was affected by his service-connected dermatitis. Also, there is no evidence that the Veteran used any intermittent systemic therapies to treat any dermatitis during the period on appeal. Further, the April 2020 examiner indicated that there were no physical manifestations of a skin disorder at the time of the examination. Also, the Veteran reported that he was not then currently taking medication for his skin disorder. Likewise, the July 2021 VA addendum medical opinion determined that the evidence of record did not support a finding that the Veteran had a skin disorder with a systemic effect. The Board acknowledges the Veteran's contentions that his service-connected dermatitis warrants a compensable evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses such as the state of his skin. The Veteran has reported intermittent issues with his skin. However, VA clinical records from May 2016, April 2017, October 2018, and October 2019 showed skin screens to be negative or normal. Regular treatment shows no complaints regarding the skin. The Board relies on the contemporaneous evidence in the file given for treatment purposes as well as the results of VA examiner opinions in coming to its determination. When there is a history of remission and recurrence of a condition, the duty to assist encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time). In Voerth v. West, however, the Court found Ardison inapplicable where the Veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). Here, the facts are distinguishable from Ardison and similar to Voerth because the given the above evidence. During the appeal period, the records do not show a flare ups or recurrences. Under Voerth, an examination in an active phase of the condition was not required. Accordingly, the Board finds the evidence demonstrates that the Veteran's dermatitis symptoms are fully and appropriately addressed by the criteria for a noncompensable rating, as there is no suggestion that the affected areas by the skin disorder constitutes 5 or more percent of his body, total or exposed. Therefore, a 10 percent rating for dermatitis is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REMANDED Entitlement to service connection for sinusitis and/or rhinitis is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to sinusitis and/or rhinitis, is remanded. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis and/or rhinitis is remanded. In its March 2021 remand, the Board directed the RO to obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's seasonal allergic rhinitis clearly and unmistakably (undebatable) preexisted the Veteran's service. Further, the Board directed that if the examiner found that it did clearly and unmistakably preexist service, then the examiner was to opine whether it was clearly and unmistakably not aggravated by his service, including the Veteran's in-service exposure to jet fuels or other noxious substances. In this regard, the July 2021 VA examiner opined that the Veteran's claimed allergic rhinitis clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. However, in support of this conclusion, the examiner relied solely on the absence of evidence of documented allergic rhinitis during the Veteran's period of active military service. Additionally, the examiner did not discuss any possible effects of the Veteran's in-service exposure to jet fuels or other noxious substances as directed in the March 2021 Board remand. Therefore, the Board finds that the July 2021 VA opinion is inadequate for purposes of determining service connection because it provides an inadequate rationale. Given this deficiency, an addendum opinion is required with respect to the Veteran's service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Moreover, the Board finds that the July 2021 VA opinion fails to substantially comply with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Accordingly, to ensure compliance with the March 2021 remand directives, and to ensure that any decision rendered in the Veteran's appeal is based on sufficient evidence, the Board finds that another VA opinion should be obtained. 3. Entitlement to service connection for obstructive sleep apnea, to include as due to sinusitis and/or rhinitis is remanded. The Veteran seeks entitlement to service connection for sleep apnea secondary to his claimed sinusitis and/or rhinitis condition which is being remanded as discussed in the previous section. Because a decision on the remanded issue of entitlement to service connection for sinusitis and/or rhinitis will significantly impact the claim for service connection for sleep apnea, this matter is also being remanded. The matters are REMANDED for the following action: 1. Return the July 2021 examination report to the prior examiner, or a similarly situated examiner for an addendum opinion. If determined necessary, schedule the Veteran for VA examinations with examiner(s) of appropriate expertise to determine the nature and etiology of the Veteran's claimed sinusitis and/or allergic rhinitis. In either case, the examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The examiner should provide the following opinions: (a) Did the Veteran have sinusitis and/or allergic rhinitis that clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in-service? (b) If so, is there clear and unmistakable evidence that the pre-existing sinusitis and/or allergic rhinitis was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran's period of active service? If the Veteran's pre-existing sinusitis and/or allergic rhinitis did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? If there was no increase in pathology, that should be clearly set out. (c) If there is any sinusitis and/or allergic rhinitis that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sinusitis and/or allergic rhinitis had its onset during, or is otherwise etiologically related to, the Veteran's active service. In providing the requested opinions, the examiner should refer to the pertinent evidence of record, including the Veteran's documented in-service treatment for respiratory complaints, as well as private and VA treatment records and the Veteran's lay statements in support of his claims. Please also discuss effects of exposure to jet fuels or other noxious substances. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. In rendering the opinion, the examiner is instructed not to rely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service 3. After completing the above development, obtain an addendum medical opinion to determine the nature and etiology of the claimed obstructive sleep apnea. The examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. (a) The examiner must provide an opinion as to whether the Veteran's claimed obstructive sleep apnea is at least as likely as not (50 percent or greater probability) caused by or results from the Veteran's active service. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any obstructive sleep apnea is caused by his sinusitis and/or allergic rhinitis, or any of the Veteran's service-connected disabilities. (c) The examiner should then opine whether the claimed obstructive sleep apnea is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his sinusitis and/or allergic rhinitis, or any of the Veteran's service-connected disabilities. In providing the requested opinions, the examiner(s) should refer to the pertinent evidence of record, including the Veteran's lay statements in support of his claim. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for sleep apnea as secondary to sinusitis and/or rhinitis. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his 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. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.