Citation Nr: 21008179 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-16 368 DATE: February 11, 2021 REMANDED Entitlement to service connection for insomnia is remanded. Entitlement to service connection for bilateral macular degeneration is remanded. Entitlement to an initial rating in excess of 10 percent for onychomycosis with dermatitis and eczema prior to June 14, 2018, and in excess of 60 percent thereafter, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1971 to September 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for insomnia and bilateral macular degeneration and granted service connection for chronic onychomycosis with dermatitis and eczema and assigned a 10 percent disability rating, effective May 17, 2011. In a February 2019 rating decision, the RO increased the disability rating for chronic onychomycosis with dermatitis and eczema to 60 percent, effective June 14, 2018. In this same rating decision, the RO also granted service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent disability rating, effective May 17, 2011. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for PTSD. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this issue is not in appellate status at this juncture. 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). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2020. A copy of the transcript has been reviewed and associated with the claims file. 1. Entitlement to service connection for insomnia is remanded. The Veteran’s service treatment records reveal that he had sleeping issues. In July 1996, he requested medication to help sleep and was prescribed Trazadone. He continued to complain of insomnia and in April 1997 he was diagnosed with primary insomnia pursuant to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders. Following service, the Veteran was again diagnosed with insomnia and prescribed Ambien in May 2002. The Veteran underwent a psychiatric examination in July 2011, at which time he reported sleep problems and stated that he was currently prescribed Ambien. The Veteran testified at the hearing in October 2020 and indicated that he was currently prescribed Ambien. The Veteran submitted a list of prescribed medications from January 1996 to June 2011. It is unclear from his treatment records who prescribed his current medications and if he has a current diagnosis of insomnia separate from his service-connected PTSD disorder. Accordingly, the Board finds that a remand is warranted in order for the RO to ascertain his current treating healthcare providers, VA and non-VA providers, and schedule a VA examination to determine whether he has a current diagnosis of insomnia pursuant to the current fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 2. Entitlement to service connection for bilateral macular degeneration is remanded. The Veteran’s service-treatment records indicate that he reported wearing glasses or contact lenses in February 1977 and throughout the remainder of his active service. In November 1999, he complained of blurry vision when reading small print. In April 1997, he was diagnosed with macular degeneration. Following service, in March 2000, the Veteran was diagnosed with early AMD (macular degeneration), RPE mottling, and presbyopia. The Veteran testified at the hearing in October 2020 and indicated that he continues to go to a local army base to obtain prescription glasses. Given that the Veteran may have a current diagnosis that is related to service, the Board finds that a VA examination is warranted. Furthermore, on remand, the RO should request information regarding his VA and non-VA treating healthcare providers. 3. Entitlement to an initial rating in excess of 10 percent for onychomycosis with dermatitis and eczema prior to June 14, 2018, and in excess of 60 percent thereafter is remanded. 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. Prior to August 13, 2018, under DC 7806, a 10 percent rating is assigned for involvement of 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 involvement of 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 involvement of 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one 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. 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. 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. Effective August 31, 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). In the present case, the Veteran underwent a skin VA examination in April 2012. The examiner assessed dermatitis or eczema and indicated that the Veteran had not been prescribed topical or oral medications in the prior 12 months. The examiner noted that the claims file was not reviewed and that her findings were based on examination on that day only. The Veteran submitted a May 2017 statement by L.V., MPAS, PA-C, and indicated that he had been a patient since 2005. L.V. indicated that the eczematous dermatitis involved more than 40 percent of his body surface area and that treated had included multiple treatment options, including topical and oral steroids. A June 2018 skin VA examination concluded that his eczema covered over 40 percent of his total body area. Based on this VA examination, his disability rating was increased to 60 percent, the maximum schedular rating, effective on the date of this examination. During the October 2020 hearing, the Veteran indicated that he was seen by a private dermatologist for his skin disability. He had flare-ups every 30 to 45 days and used steroidal pills and creams. Following the hearing, the Veteran submitted an opinion by A.E., M.D. Dr. A.E. indicated that the Veteran had been a patient since 2003. During that time, treatment included systemic steroids, oral and topical medications, and a trial of narrowband ultraviolet (NBUVB) light therapy, which were minimally effective. Overall, the skin disability involved longstanding, chronic, and lifelong eczematous dermatitis with frequent flares affecting greater than 40 percent of the total body surface area. After a review of the evidence, the Board finds that a remand is warranted in order for the RO to obtain the Veteran’s private dermatology treatment records and a retroactive medical opinion to determine the severity and treatment of the Veteran’s service-connected onychomycosis with dermatitis and eczema from May 2011 to June 2018, including the use of systemic therapy or other immunosuppressive drugs from 2011 to 2018 and the percentage of exposed areas and entire body covered during a flare. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from August 2016 to the present. 2. Ask the Veteran to identify any pertinent VA and non-VA medical treatment providers for his pending insomnia, macular degeneration, and skin disability claims from 2011 to the present. Furnish the appropriate authorization(s) for the release of the medical records. If the Veteran fails to furnish the necessary release for private treatment records, he should be advised to obtain the records and submit them to VA. 3. After a completion of #1 and #2, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any insomnia disability. The claims file, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should determine whether the Veteran has a distinct and separate diagnosis of insomnia. If so, the examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s insomnia had its onset in and/or is otherwise related to his period of active service? B. For any diagnosed insomnia disability, is it at least as likely as not (probability of at least 50 percent) that it was caused by his service-connected PTSD?  If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s insomnia has been aggravated (any incremental increase in disability) as a result of his service-connected PTSD?  If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and insomnia that shows a baseline of his insomnia disability prior to aggravation?  If so, please identify. The examiner must provide a comprehensive rationale for each opinion provided. The examiner must discuss the Veteran’s in-service diagnosis of insomnia pursuant to DSM-IV and post-service diagnosis of insomnia. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    Finally the examiner should discuss whether the Veteran’s insomnia involves symptoms distinct from, or results in impairment not contemplated by (in either kind or degree), sleep disturbance and nightmares listed among the criteria for the Veteran’s service-connected PTSD. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s macular degeneration. The claims file, including a copy of the remand, must be made available to the examiner and such review should be noted in the examination report. The examiner must identify all eye disabilities found on examination and identified during the pendency of this claim and respond to the following: For any diagnosed eye disability, including macular degeneration, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s bilateral eye disability had its onset in and/or is otherwise related to his period of active service? The examiner must provide a comprehensive rationale for each opinion provided. The examiner must discuss the Veteran’s in-service and post-service diagnosis of macular degeneration. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.    If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training.  As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1 and #2, forward the claims file, including a copy of this remand, to the June 2018 skin VA examiner, or an appropriate clinician if she is not available, to provide a retroactive medical opinion regarding the severity of the Veteran’s service-connected onychomycosis with dermatitis and eczema from May 2011 to June 2018. The examiner should determine what percentage of the Veteran’s body is affected by his service-connected skin disorder, including both the exposed areas only and the entire body, from May 2011 to June 2018. Flare-ups, or breakouts, have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups produce additional area(s) affected by the service-connected skin disorder. If so, please discuss. The examiner must review the record for prescribed treatment for the skin disability and indicate what treatment the Veteran has received, whether topical or systemic, and the length of time for which each treatment has been prescribed from May 2011 to June 2018. The examiner should provide a sufficient rationale when determining whether the Veteran’s treatment is considered topical or systemic. For topical treatment, the examiner must discuss (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. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran’s statements contained in the record, including the October 2020 hearing testimony, and the May 2017 and October 2020 medical opinions. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.