Citation Nr: 21008442 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-46 477 DATE: February 17, 2021 REMANDED Entitlement to a compensable rating for the Veteran's service-connected dermatophytosis (skin condition) prior to October 19, 2015, and a rating in excess of 30 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to May 1970. This appeal stems from a March 2013 which denied a compensable rating for the Veteran’s skin condition. In its February 2019 decision, the Board of Veterans’ Appeals (Board) denied a compensable rating for his skin condition prior to October 19, 2015 and granted a rating of 30 percent thereafter. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 for Joint Partial Remand (JMPR), the Veteran and the Secretary of Veterans Affairs (the Parties) asked the Court to remand the appeal regarding the Veteran’s skin disability to the Board. The parties agreed that that the February 2019 Board decision failed to address whether the Veteran’s treatment for his skin condition was topical in light of the holdings in Johnson v. Shulkin, 862 F. 3d 1351 (Fir Cir. 2017); and Burton v. Wilkie, 30 Vet. App. 286 (2018). In July 2020, the Board remanded this appeal in order to comply with the JMPR and Court’s Order. Specifically, the Board remanded for an addendum VA medical opinion to address whether the Veteran’s use of topical corticosteroids amounted to systemic therapy under the old pre-2018 version of DC 7806. See July 2020 Board Remand. In response to the July 2020 Board directives, the December 2020 VA examiner provided a medical opinion regarding the Veteran’s skin disability. See December 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Unfortunately, the December 2020 VA examiner provided what appears to be a negative nexus opinion and made several statements and opinions that were either inconsistent with the record or not pertinent to the issue on appeal. See December 2020 VA DBQ. For instance, the examiner stated that the “Veteran has not been on any medications prescribed for dermatophytosis.” Id. The examiner also stated that triamcinolone and fluocinonide are topical steroids and are not systemic. They are not used for tinea.” He also stated that it “was unclear why the veteran’s service-connected for chronic athlete’s foot/tinea pedis” opined that the Veteran’s tinea pedis is now “considered resolved.” The examiner also asserted that “the veteran has been on no systemic medications, topical, or systemic steroids or antifungal medications for his service-connected tinea pedis. If the veteran was using topical steroids to treat the fungus, he was doing so incorrectly.” Id. Upon review, the Board finds that the December 2020 VA medical opinion fails to comply with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.). For instance, the examiner was asked to identify the Veteran’s medications for his service-connected dermatophytosis including fluocinonide and triamcinolone and provide an opinion on whether those medications constituted systemic therapy. Instead, the VA examiner provided a number of opinions including providing a negative nexus opinion that failed to address this directive. As such, the Board lacks sufficient information to appropriately rate the Veteran’s service-connected skin disability, which is the issue on appeal. The December 2020 VA examiner’s opinion that the Veteran was not treated with triamcinolone and fluocinolone is not supported by the record. In fact, the March 2013 VA examiner indicated that the Veteran’s dermatophytosis was treated with Triamcinolone, a topical corticosteroid, on a constant/near-constant basis during the past 12 months. See March 2013 VA DBQ. Similarly, in October 2015, a private physician also opined that the Veteran used Fluocinolone, a topical corticosteroid, on a constant/near-constant basis during the past 12 months. See October 2015 Private DBQ. Additionally, the Veteran’s July 2020 VA active medications list includes Flucinolone acetonide. See July 2020 VA Nursing Outpatient Note in CAPRI received December 2020. As such, the December 2020 VA medical opinion is based on inaccurate facts and lacks probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.) Thus, based on the foregoing, unfortunately, the Board finds that another remand is required to obtain an addendum that fully complies with and addresses the issues required by the Court and February 2020 JMPR. Notably, the December 2020 VA examiner does not appear to have the requisite medical expertise to render an opinion for the Veteran’s dermatological disability in light of the opinions he provided and considering he is a physician in General Practice, Obstetrics and Gynecology. Thus, on remand the VA should obtain an addendum medical opinion from a dermatologist or medical professional with appropriate expertise to evaluate dermatological disabilities. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Atlanta VA Medical Center (VAMC), and that records dated through November 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from November 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at the Atlanta VAMC.   2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. Obtain an addendum medical opinion from an examiner OTHER THAN THE DECEMBER 2020 VA EXAMINER preferably from a dermatologist or by an appropriate clinician to determine the nature and severity of the service-connected dermatophytosis. 4. Based on a review of the claims file including this remand and prior VA examinations, the examiner is asked to provide the following information.: (a.) IDENTIFY EACH TOPICAL MEDICATION PRESCRIBED TO TREAT THE DERMATOPHYTOSIS DURING THE APPELLATE PERIOD. SEE, E.G., TRIAMCINOLONE AND FLUOCINONIDE CREAMS. (b.) If any of these medications were prescribed for the treatment of another skin disability (other than the dermatophytosis), identify those medications. (c.) If the fluocinonide and triamcinolone were prescribed for the service-connected dermatophytosis, or other topical or steroid please provide an opinion as to whether the use of either or any of these topical steroidal creams constituted systemic therapy. • Please discuss whether the Veteran’s treatment for dermatophytosis was administered on a large scale or only on the Veteran’s feet; and • the method by which the topical treatment for dermatophytosis works, and (2) its side effects. (d.) For each topical non-steroidal medication for the treatment of dermatophytosis that are “like” a corticosteroid or other immunosuppressive drug, provide an opinion as to whether each constitutes systemic therapy. • Systemic therapy is defined as a therapy that affects the body as a whole. • In answering this question, the VA examiner must discuss the method by which the topical treatment works, as well as any known side effects. • A complete rational must be provided for each conclusion provided. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.