Citation Nr: 21010713 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 08-03 340 DATE: February 25, 2021 REMANDED Entitlement to a rating in excess of 10 percent for fungal infection of both hands and feet is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1967 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2009 substantive appeal, the Veteran requested a hearing before the Board. However, the Veteran withdrew his request in an October 2009 written correspondence. This matter was previously before the Board in January 2005, April 2010, and August 2013, and was remanded for further development in each instance. Additionally, in an April 2017 decision, the Board issued a stay in the matters pending resolution of VA’s appeal of Johnson v. McDonald, 27 Vet. App. 497 (2016). In August 2017, the Board lifted the stay and denied the Veteran’s increased rating claim for fungal infection of the hands and feet, and his claim of entitlement to TDIU. However, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties entered into a Joint Motion for Remand (JMR) and the matter was returned to the Board. In a December 2018 decision, the Board remanded the matters for further development to comply with the Court’s order. While the matters have been returned to the Board for further appellate review, the Board finds that an additional remand is warranted since remand directives have not been substantially complied with. The Board notes that new evidence was added to the record after issuance of the November 2020 supplemental statement of the case (SSOC). However, since the matters are being remanded, the AOJ will have an opportunity to consider the evidence in the first instance while on remand. 1. Entitlement to a rating in excess of 10 percent for fungal infection of both hands and feet is remanded. In December 2018, the Board remanded this matter to obtain a clarifying medical opinion to determine whether any of the systemic therapies the Veteran received were like or similar to corticosteroids or immunosuppressive drugs. See Warren v. McDonald, 28 Vet. App. 194 (2016) (noting that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs). Pursuant to the Board’s remand directives, an examination and medical opinion were obtained in June 2019. In the medical opinion, the examiner found that the Veteran was last treated with Loprox suspension in March 2017 and determined that this is a topical medication for fungal infection. The examiner also found that medications currently being used by the Veteran were not for fungal infection. Moreover, in an April 2020 addendum opinion, the examiner found that medications such as Griseofulvin, Lamisil, Sporanox, and Diflucan are not like or similar to corticosteroids or immunosuppressive drugs, which was contrary to the Veteran’s attorney’s assertion outlined in his August 2019 supplemental argument. However, the Board finds the opinions are inadequate for adjudicating the Veteran’s claim as neither opinion answered the question directed from the Board, nor did the examiner provide an adequate or clear rationale to support his opinion. The examiner was requested to opine as to whether any of the systemic therapies that the Veteran received were like or similar to corticosteroids or immunosuppressive drugs. However, the examiner gave findings that appear to be inapplicable to the Veteran. For example, the examiner noted that Griseofulvin can be used in children; and that Lamisil can be topical or systemic and can also be used in children. The examiner also noted that Sporanox and Diflucan belong to the antifungal family and are used to treat immunocompromised patient population. The Board notes that while these findings show how the medications can be used, the examiner did not explain how these findings relate to the Veteran’s use of the medications. Moreover, none of the findings answer the pertinent question of whether the Veteran’s use of these medications was like or similar to corticosteroids or immunosuppressive drugs. Therefore, the Board finds the opinion is inadequate and remand is warranted. In rendering a new medical opinion, the examiner is advised to consider the relevant law in determining whether any of the systemic therapies the Veteran received were like or similar to corticosteroids or immunosuppressive drugs. The Board particularly notes that in Warren v. McDonald, 28 Vet. App. 194 (2016) the Court of Appeals for Veterans Claims (Court) held that “systemic therapy” for Diagnostic Code 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is “like” a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. Subsequently, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that the “use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.” Further, the Federal Circuit stated that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. The Court also held that when determining whether topical treatment for a skin disorder constitutes systemic therapy such as corticosteroids or other immunosuppressive drugs, it must be determined (1) whether the topical treatment operates by affecting the body as a whole in its treatment of the condition at issue, and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. See Burton v. Wilkie, 30 Vet. App. 286 (2018) (citing Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Warren v. McDonald, 28 Vet. App. 194 (2016)). 2. Entitlement to a TDIU is remanded. The Veteran’s claim for TDIU is inextricably intertwined with his increased rating claim; therefore, the issue of entitlement to TDIU must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claim folder. 2. Obtain a medical opinion from a dermatologist to determine the nature and level of severity of the Veteran’s service-connected fungal infections of the hands and feet, the types of therapy and treatment required, the extent of involvement, and any functional impairment caused. If a dermatologist is unavailable, obtain a medical opinion from an otherwise qualified physician. Provide a VA examination only if deemed necessary by the examiner. The examiner must review the entire claims folder, including this Remand, before rendering an opinion. The examiner should provide an opinion as to whether any of the systemic therapies that the Veteran received during the entire appeal period (from December 2002 to present) were like or similar to corticosteroids or immunosuppressive drugs. The examiner should consider all evidence of record, including the cited caselaw noted in this Remand, lay statements, and the medical evidence, when rendering his/her opinion. The examiner must provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. The AOJ must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board’s specific remand directives. 4. Then, readjudicate the claims, including the TDIU claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.