Citation Nr: 21007462 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-16 256 DATE: February 9, 2021 ORDER An initial compensable evaluation for onychomycosis/nail fungus is denied. An initial compensable evaluation for pseudofolliculitis barbae is denied. REMANDED Service connection for a psychiatric disorder, to include memory loss and temperament problems, claimed as result of exposure to contaminated water at Camp Lejeune, is remanded. Service connection for residuals of a left lower leg/ankle laceration, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran’s onychomycosis/nail fungus is not manifested by scars or disfigurement of the head, face, or neck; does not affect at least 5 percent of his entire body or of exposed areas; and has not required intermittent or longer systemic therapy. 2. The Veteran’s pseudofolliculitis barbae is not manifested by scars or disfigurement of the head, face, or neck; does not affect at least 5 percent of his entire body or of exposed areas; and has not required intermittent or longer systemic therapy. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for onychomycosis/nail fungus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7820-7806. 2. The criteria for an initial compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to August 1982. The Board remanded the issues on appeal in October 2018. The Board finds that there has been compliance with the prior remand directives with respect to the claims for initial compensable evaluations being decided in this decision and the Board may proceed with review of them. Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the remand instructions below request that the Agency of Original Jurisdiction (AOJ) obtain outstanding VA treatment records dated in 2009. Those records are dated before the appeal period for the Veteran's increased initial evaluation claims and thus would not be relevant to them. Accordingly, the Board may properly adjudicate the onychomycosis/nail fungus and pseudofolliculitis barbae claims at this time. In August 2016, the Veteran withdrew a request for a Board videoconference hearing. Initial Compensable Evaluations In general, ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. With a claim for an increased initial rating, separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 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, Diagnostic Codes 7813 and 7820 direct that dermatophytosis and infections of the skin not listed elsewhere be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7804 and 7805); or dermatitis (Diagnostic Code 7806), depending on the predominant disability. Under Diagnostic Code 7806, 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. The disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court of Appeals for Veterans Claims 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, 7813 and 7820. See 38 C.F.R. § 4.118. Under this formula, 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. The disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7813 and 7820. 1. An initial compensable evaluation for onychomycosis/nail fungus. The Veteran generally contends that he is entitled to a compensable initial evaluation for onychomycosis/nail fungus. The Veteran’s onychomycosis/nail fungus is rated under Diagnostic Code 7820-7806. Here, the evidence of record, discussed below, demonstrates that the predominant disability is dermatitis, as the disability is not located on the head, face, or neck and is not characterized by scars. The Board finds that the preponderance of the evidence is against the assignment of a compensable initial evaluation for onychomycosis/nail fungus under the prior or revised regulations because it 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; did not require intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period; and does not result in scars or disfigurement of the head, face, or neck. A May 2017 VA Skin Diseases Disability Benefits Questionnaire (DBQ) provides a diagnosis of onychomycosis. The Veteran’s condition did not cause scarring of any location or disfigurement of the head, face or neck. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. A June 2017 addendum relates that the Veteran’s percentage of entire body exposed and not exposed, affected by onychomycosis, is less than 5 percent. The Board notes that this evidence is uncontroverted in the record. The Board acknowledges that the Veteran believes that his onychomycosis/nail fungus is more severe than the assigned disability rating reflects. While the Veteran is competent to report observable symptoms, he has not done so in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 his onychomycosis/nail fungus would warrant a higher rating under a different Diagnostic Code. See 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 initial evaluation for onychomycosis/nail fungus. 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. 2. An initial compensable evaluation for pseudofolliculitis barbae. The Veteran generally contends that he is entitled to a compensable initial evaluation for pseudofolliculitis barbae. The Veteran’s pseudofolliculitis barbae is rated under Diagnostic Code 7813-7806. Here, the evidence of record, discussed below, demonstrates that the predominant disability is dermatitis, as the disability is not characterized by scars or disfigurement of the head, face, or neck. The Board finds that the preponderance of the evidence is against the assignment of a compensable initial evaluation for pseudofolliculitis barbae under the prior or revised regulations because it 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; has not required intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period; and does not result in scars or disfigurement of the head, face, or neck. An August 2016 VA Skin Diseases DBQ provides that the Veteran’s pseudofolliculitis barbae had been treated in the past with a topical corticosteroid cream which was given to him in June 2016. This was the first time he had ever been treated specifically with medication for the condition. The Veteran reported that he had been growing his beard and therefore had not used the cream. At present, he had a full beard. The examiner noted a few scattered lesions to the beard area of the face and neck consistent with pseudofolliculitis barbae. The examiner noted that the Veteran had no scarring and further specified that the Veteran's condition resulted in no scarring of any location, or disfigurement of the head, face or neck. The Veteran had been treated with a topical corticosteroid for pseudofolliculitis barbae in the past 12 months for a total duration of less than 6 weeks. The Veteran's condition affected less than 5 percent of his total body area and less than 5 percent of the exposed area. A July 23, 2020 VA Skin Diseases DBQ relates that the Veteran reported bumps that drained and were itchy and painful. The Veteran used an OTC cream as needed, which was daily, for his pseudofolliculitis barbae. The Veteran did not bring the cream with him and did not know the name. The examiner described the cream not as a corticosteroid or other immunosuppressive drug but as “Other medication.” The Veteran's total duration of use of the cream in the past 12 months was constant/near-constant. The Veteran had no scarring of any location or disfigurement of the head, face or neck. No follicular lesions were found on examination. The Veteran kept a beard for prevention and used a cream daily. The Veteran’s condition affected less than 5 percent of his total body area and less than 5 percent of the exposed area typically, but there were no current lesions due to treatment. A July 31, 2020 VA Skin Diseases DBQ relates that the Veteran did not currently have any visible characteristics of pseudofolliculitis barbae as he had a full beard. The Veteran acknowledged that the condition did not manifest at all if he did not shave. He had not been treated with medication over the prior 12 months for any skin condition. The Veteran had no scarring of any location or disfigurement of the head, face or neck. The Veteran's pseudofolliculitis barbae covered none of his total body and none of his exposed area. He had a skin condition without any visible characteristic lesions. The Veteran reported that his pseudofolliculitis barbae covered his chin and both cheeks when he shaved. At the time of the examination, the Veteran had a full beard so there were no visible characteristics and the Veteran reported that he was not having a breakout. The Board acknowledges that the August 2016 VA Skin Diseases DBQ relates that the Veteran had been treated with a topical corticosteroid for pseudofolliculitis barbae in the past 12 months for a total duration of less than 6 weeks. However, critically, the Veteran also reported that he did not use the medication. Moreover, there is no indication that, even if the medicine had been used, the treatment was on a large-enough scale to affect the Veteran's body as a whole, and to thus meet the definition of “systemic therapy”; or that, likewise, it worked by circulating through the bloodstream, instead of by direct contact with the skin. Accordingly, the Board concludes that this treatment was not systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed Cir. 2017) and Burton v. Wilkie, 30 Vet. App. 286 (2018). The Board also acknowledges that the July 23, 2020 VA Skin Diseases DBQ relates that the Veteran used a topical cream. However, the VA examiner specified that it was not a corticosteroid or other immunosuppressive drug. The Board acknowledges that the Veteran believes that his pseudofolliculitis barbae is more severe than the assigned disability rating reflects. While the Veteran is competent to report observable symptoms, he has not done so in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 his pseudofolliculitis barbae would warrant a higher rating under a different Diagnostic Code. See 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 initial evaluation for pseudofolliculitis barbae. 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. REASONS FOR REMAND 1. Service connection for a psychiatric disorder, to include memory loss and temperament problems, claimed as result of exposure to contaminated water at Camp Lejeune, is remanded. 2. Service connection for residuals of a left lower leg/ankle laceration, to include as secondary to service-connected disability, is remanded. These issues are remanded because evidence indicates that there are outstanding relevant VA treatment records that the AOJ did not obtain on remand. Stegall, supra. An October 2011 rating decision relates that it electronically reviewed VA treatment records from the Durham VA Medical Center (VAMC) dated from March 16, 2009 to October 11, 2011. A review of the Veteran's eFolder reveals that it contains no VA treatment records from this VAMC earlier than September 14, 2009. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the service connection issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include those from the Durham VAMC dated from March 16, 2009 to September 14, 2009. 2. Then, if any further development is indicated as a result of the additional materials received on remand, such development should be accomplished. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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. § 20.130