Citation Nr: 21011636 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-26 457 DATE: March 2, 2021 ORDER A rating in excess of 10 percent for dermatitis (claimed as jungle rot body, bilateral feet and legs) is denied. REMANDED Entitlement to service connection for hypertension to include as due to herbicide exposure is remanded. Entitlement to service connection for degenerative arthritis of the left knee, claimed as a left knee disability. FINDING OF FACT The Veteran’s dermatitis has not covered at least 20 percent of the entire body or at least 20 percent of exposed areas affected; has not required systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period; and has not resulted in scars that are superficial and nonlinear that affect an area or areas of 144 square inches (929 sq. cm) or greater. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for dermatitis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7802, 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1971, to include in the Republic of Vietnam (Vietnam). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified before a Veterans Law Judge who no longer works at the Board; a hearing transcript is of record. In January 2021 correspondence, the Veteran was given the opportunity to request another optional Board hearing. The Veteran did not respond within the required 30 days, and it is presumed that he declined another hearing. The Veteran’s claims on appeal were remanded in November 2017 and April 2019 for further development. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to a rating in excess of 10 percent for dermatitis (claimed as jungle rot body, bilateral feet and legs). The Veteran’s claim for an increased rating for his service – connected skin disability was last remanded in April 2019 for additional development. The Board finds that there has been substantial compliance with the remand directives pertaining to the Veteran’s claim herein and adjudication may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is currently rated at 10 percent for his service-connected dermatitis, under DC 7806. 38 C.F.R. § 4.118. He seeks a higher rating. Under DC 7806, a 10 percent rating is warranted for dermatitis or eczema covering 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 corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema covering 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 warranted for dermatitis or eczema covering 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. 38 C.F.R. § 4.118. The Board notes that the U.S. Court of Appeals for the Federal Circuit has held that topical corticosteroids do not constitute systemic therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Veteran was afforded a VA skin diseases examination in November 2009. He reported that during basic training he had an eczematous rash from his ankles to mid – calf on his legs bilaterally. The rash resolved but then returned to include both feet when the Veteran was in Vietnam. He was treated for jungle rot while in Vietnam and at the time he left service the condition had again resolved. Subsequently, the Veteran has experienced similar pruritic scaly rashes to both lower extremities and occasionally on his upper arms. Upon physical examination, the Veteran’s upper and lower extremities were revealed no evidence of skin eruptions or rash. There were some actinic keratoses scattered on both forearms. No scars were observable to the lower extremities. Because there was no evidence of chronic dermatitis at the November 2009 examination, no functional limitations or issues regarding unemployability were made. The Veteran underwent another VA skin diseases examination in January 2018. He reported that he experienced a bad rash and blistering on his legs a few times a year. The Veteran indicated that the rash comes on at any time and the severity ranges from mild to very bad. The Veteran used both Mupirocin and Triamcinolone topical creams for dermatitis for 6 weeks or more during the year, however he did not require constant use. Upon physical examination, the examiner noted there was no active rash and concluded that his condition was in remission. The examiner also noted a 10 centimeter by a half centimeter scar, on the Veteran’s right shin which he stated was from a prior skin rash. Based on the Veteran’s reports and review of the medical records, the examiner opined that the severity of the Veteran’s dermatitis was mild. In January 2020, the Veteran was provided another VA examination to evaluate the current severity of the dermatitis. The Veteran endorsed constant or near constant treatment over the prior year with Hydrocortisone cream, a topical corticosteroid. Upon physical examination, the examiner documented eczema covering a total body area of between 5 percent and less than 20 percent and no exposed area. The examiner also indicated that the Veteran’s dermatitis did not cause scarring or disfigurement to the head, face or neck. There was no functional impact on his ability to work. VA treatment records reflect use of topical corticosteroids and Eucerin cream for a chronic rash that is intermittent and stable. After reviewing the foregoing, the Board finds that the criteria for a higher 30 percent rating for dermatitis are not met. A higher 30 percent rating requires that the skin disorder cover at least 20 percent of the entire body or at least 20 percent of exposed areas; or require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of at least 6 weeks. However, the Veteran’s dermatitis only appears to impact an area on lower legs bilaterally and covers less than more than 5 percent but less than 20 percent of the entire body Moreover, although it appears the Veteran requires the use of constant or near-constant topical corticosteroid cream, the use of topical therapy does not constitute systemic therapy for VA purposes. See Johnson, 862 F.3d at 1351. Accordingly, a rating in excess of 10 percent for chronic dermatitis is not warranted. The Board has considered whether a higher rating is warranted under other appropriate diagnostic codes (DCs 7800-7804). See Butts v. Brown, 5 Vet. App. 532 (1993). DCs 7800 is not applicable because it only applies to scars that involve the head, face, or neck. DC 7801 is also not applicable because it refers to scars that are deep with underlying soft tissue damage. DC 7804 is also not applicable because the Veteran’s dermatitis scarring noted in the January 2018 VA examination report was not characterized as painful or unstable. The Board has considered whether a rating for the Veteran’s dermatitis is warranted pursuant to DC 7802. Under DC 7802, a 10 percent rating is warranted for scars, not of the head, face, or neck, that are superficial and nonlinear that affect an area or areas of 144 square inches (929 sq. cm) or greater. However, the Veteran’s scar as described in the January 2018 VA examination report, is not of sufficient size to meet the criteria under DC 7802, thus a rating pursuant to DC 7802 is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension to include as due to herbicide exposure is remanded. The Veteran contends that his hypertension is service – related. The Veteran indicated on his November 2009 VA 21-526 Application for Compensation that he served in Republic of Vietnam during the Vietnam War and his DD Form 214 confirms that service. Herbicide exposure is therefore presumed. Unfortunately, there has not been substantial compliance with the Board’s previous remand directive regarding service connection for hypertension, to include as due to herbicide exposure. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The April 2019 Board remand directive asked the examiner to offer an opinion regarding the etiology of the Veteran’s hypertension. Specifically, the examiner was asked to address whether there was any evidence that the Veteran’s hypertension was directly related active duty. In a January 2020 addendum medical opinion, the examiner opined that Veteran’s hypertension was less likely than not related to active duty. The rationale for the opinion was that the Veteran’s hypertension was diagnosed in 1995 when he started driving a school bus. There was otherwise no evidence of high blood pressure in service or in the 24 years post – service prior to diagnosis. The Board finds that the January 2020 medical opinion is inadequate for rating purposes. The examiner did not opine on a possible nexus between the Veteran’s hypertension due exposure to herbicides agents. Therefore, on remand an additional medical opinion should be obtained to determine the nature and etiology of the Veteran’s hypertension to include as due to herbicide exposure. 2. Entitlement to service connection for degenerative arthritis of the left knee, claimed as a left knee disability is remanded. The Veteran seeks service connection for a left knee disability and made several contentions in that regard. In May 2010 correspondence the Veteran asserted that his left knee disability was due to a repetitive bending and kneeling as a result of his military occupational specialty (MOS) as a welder during active service. At his November 2016 Board hearing the Veteran testified that he slipped on ice and fell on a rock. He contended that his knee has hurt since then. Finally, at the November 2016 Board hearing, the Veteran also contended that his knee was injured as a child prior to service so when it became swollen, he did not go to the dispensary because he had been hurt before. Unfortunately, there has not been substantial compliance with the Board’s previous remand directive regarding service connection for a left knee disability and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The April 2019 Board remand directive asked the examiner to offer an opinion regarding the etiology of the Veteran’s left knee disability. Specifically, the examiner was asked to address whether the Veteran’s left knee disability had its onset during service, if the Veteran’s left knee arthritis had manifested during to a compensable degree within the first post – service year and whether the Veteran’s knee disability was otherwise related to active duty service to include the slip and fall accident the Veteran described. In a January 2020 addendum medical opinion, the examiner opined that Veteran’s left knee disability was less likely than not related to active duty. The rationale for the opinion was that the Veteran’s service treatment records were silent for any treatment, complaint or injury during service. In addition, x-rays of the Veteran’s knees showed degenerative changes in both knees which was not consistent with the Veteran’s contention that he slipped and fell injuring only his left knee. Finally, the January 2020 examiner opined that the Veteran’s obesity was most likely the cause for the advanced degenerative joint disease in the left knee. The Board finds that the January 2020 medical opinion is inadequate for rating purposes. Specifically, the examiner provided a negative nexus opinion based on the lack of documentation of left knee treatment or complaints during service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, the examiner did not address the Veteran’s lay contention that his MOS of welder required him to kneel and bend repetitively, causing knee problems. The Board finds that remand for a new VA examinations of the Veteran’s left knee disability is required to ensure compliance with the April 2019 remand directives in this matter. The matters are REMANDED for the following action: 1. Obtain any previously unassociated VA treatment records. 2. The AOJ should obtain an addendum opinion from a competent medical examiner to address the nature and etiology of the Veteran’s hypertension. If the examiner determines that an examination is necessary to provide the opinion requested, then one shall be provided. Is it as least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension was caused by or aggravated by his active duty service to include herbicide exposure? 3. The AOJ should obtain an addendum opinion from a competent medical examiner to address the nature and etiology of the Veteran’s left knee disability. The Veteran’s claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on the examination results and a review of the pertinent medical history, the examiner should provide opinions responding to the following: (a.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current left knee disability is etiologically related to his active service? In responding to this question, the examiner is asked to consider the Veteran’s lay statements that he had ongoing and repetitive bending and kneeling while performing his MOS of welder during active duty and also slipped and fell on ice during active duty landing on his left knee. (b.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s current left knee arthritis manifested to a compensable degree with the first post – service year? Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.