Citation Nr: 21012760 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-22 911A DATE: March 5, 2021 ORDER Entitlement to a compensable rating for service-connected eczematoid dermatitis is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II (DMII), is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected skin disability has affected less than five percent of the total body area or exposed areas, and the disorder has not required systemic therapy as prescribed by a medical professional. CONCLUSION OF LAW The criteria for a compensable disability rating for a service-connected skin disability have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to December 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and October 2014 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2018 hearing. These issues were previously before the Board in April 2019 and October 2020, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, in a December 2020 rating decision, the RO granted service connection for bilateral hand disabilities. The RO granted these claims as the following: 1) degenerative arthritis, left hand thumb associated with DMII; 2) degenerative arthritis, right hand thumb associated with DMII; 3) degenerative arthritis, left hand long finger associated with DMII; 4) degenerative arthritis, right hand index finger associated with DMII; 5) degenerative arthritis, left hand index finger associated with DMII; 6) degenerative arthritis, right hand long finger associated with DMII; 7) degenerative arthritis, left hand little finger associated with DMII; 8) degenerative arthritis, left hand ring finger associated with DMII; 9) degenerative arthritis, right hand little finger associated with DMII; and 10) degenerative arthritis, right hand finger associated with DMII. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to a compensable rating for service-connected eczematoid dermatitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed his claim for a compensable evaluation of service-connected eczematoid dermatitis in June 2012. Accordingly, the appeal period will consider evidence from June 2011 to the present. The Veteran’s condition is evaluated under Diagnostic Code (DC) 7806. VA amended the criteria for rating skin disabilities effective August 13, 2018. Prior to that time, a noncompensable rating is assigned when there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating is assigned when there is 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 when there is 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. And finally, a 60 percent rating is assigned when there is 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 DC 7806. On and after August 13, 2018, DC 7806 is evaluated under the General Rating Formula for Skin. A noncompensable rating is assigned when no more than topical therapy required over the past 12-month period and either characteristic lesions involving less than 5 percent of the entire body are affected, or characteristic lesions involving less than 5 percent of exposed areas are affected. 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 for 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. 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). 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. For claims filed prior to August 13, 2018, the Court 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. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under DC 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. See also Burton, 30 Vet. App. 286 (finding that the Federal Circuit in Johnson did not mean to limit the “factual circumstances” by which topical treatment may become a systemic therapy under DC 7806 to only situations involving large scale topical application). 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). The Veteran underwent a VA examination in April 2012. There, the Veteran asserted that his hands develop a severe rash and swelling when exposed to petroleum and chemical products, and that he uses a heavy lubricant with some protection. Otherwise, the Veteran reported that he did not experience any other symptoms. During the examination, there was no documented eczematous rash, only vitiligo, which the examiner noted was an unrelated condition. The Veteran reported that he had not been treated with oral or topical medications in the past 12 months for any skin conditions. The Veteran also reported that he did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran also did not have any non-debilitating episodes in the past 12 months for those aforementioned conditions. The examiner did not provide the total body area or exposed area percentage. The examiner opined that the skin condition impacts his ability to work due to his chemical exposure limitations, but that he was able to work as a truck driver. On his October 2012 Notice of Disagreement, the Veteran asserted that the April 2012 examination did not consider the severity of his service-connected eczematoid dermatitis during flare-ups. He also submitted statements from a friend, and his wife. His friend asserted that he had known the Veteran for 15 years, and during that time when working on trucks, grease and oil would cause his hands to crack and split. His wife asserted that she has witnessed the skin irritation, sores, and skin cracking when exposed to paints, and chemicals. She also stated that he had trouble getting medication through VA, so he had to get over the counter medication, and that the condition has worsened since the onset of vitiligo and DMII. The Veteran underwent a new VA examination in July 2015. There, the Veteran reported that he was unhappy that he was not there for a joint examination for his now service-connected bilateral hand disabilities. He stated that he had sunburn on his hands, which he is prone to get due to the vitiligo. Otherwise, the Veteran reported that he only used sunscreen and moisturizer when his hands get dry, and no other skin products. The Veteran reported that he had not been treated with oral or topical medications in the past 12 months for any skin condition. He also reported that he did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran also did not have any non-debilitating episodes in the past 12 months for those aforementioned conditions. The examiner noted that the Veteran had dry patches over dorsum of both hands, but that his skin was otherwise clear, with no rash, eczema, or dermatitis. They also noted an unrelated sunburn blister, and vitiligo which was widespread. The examiner estimated that when experiencing eczema, the total body area affected, and the exposed area were both less than 5 percent. The examiner opined that the Veteran’s skin conditions impact his ability to work because he needs to avoid topical irritants that exacerbated his problem in the past. At the October 2018 Board hearing, the Veteran initially intended to withdraw his appeal of entitlement to a compensable evaluation for eczematoid dermatitis because the rating criteria does not take into consideration the symptoms of the now service-connected bilateral hand disabilities. He opted to continue his appeal because he was still seeking compensation for symptoms in his hands on the theory that those symptoms are attributable to his service-connected eczematoid dermatitis. The only symptoms that the Veteran asserted at the hearing were swelling and pain in the hands. Various VA treatment records indicate that the Veteran has occasionally sought treatment for VA for outbreaks of rashes. August 2016 records indicate that the dermatitis improved with the use of Betamethasone, a corticosteroid, used once or twice a month. February 2017 records note that the eczematoid dermatitis was mild, and well-controlled with topical corticosteroids. March 2018 records indicate that the Veteran has experienced a blistering rash involving the dorsal hands for approximately 5 years, which was attributed to pseudoporphyria secondary to naproxen. The eczematoid dermatitis was noted as mild and resolved. The Veteran underwent a new VA examination in February 2020. There, the Veteran reported an intermittent blistering rash involving the bilateral hands for the last 5 years, that is worse in the summer months. The Veteran reported that he has outbreaks when he was exposed to petroleum products, and that he last experienced one a few years ago, and he was told to use naproxen, a nonsteroidal anti-inflammatory drug to treat fever and pain. However, later during the examination, the Veteran reported that he had an outbreak in his hands a few months ago when changing the oil in his car, and that it lasted a few days, but that he only used moisturizer and no medication. The Veteran stated that when he has an outbreak, his hands break out and crack, but that he currently only uses moisturizers, and no other medication. The Veteran reported that he had not been treated with medication in the past 12 months for any skin disorder. He also reported that he had not had any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. The examiner noted that the eczematoid dermatitis as a few small areas of mild peeling in the finger webs of both hands. The examiner estimated that when experiencing eczema, the total body area affected, and the exposed area were both less than 5 percent. The examiner opined that the skin condition impacts his ability to work in that he should avoid directly touching paints and petroleum products with his hands. Here, the preponderance of the evidence shows a compensable disability rating for the Veteran’s dermatitis is not warranted at any time under either version of the regulations. In this regard, the medical evidence of record, including VA examinations in April 2012, July 2015, and February 2020, reflects that the Veteran’s dermatitis affects less than 5 percent of the entire body and less than 5 percent of the exposed areas affected. The Board acknowledges that at times the condition has been treated by naproxen and Betamethasone. However, naproxen is a non-steroidal anti-inflammatory drug used to relieve pain, inflammation, and joint stiffness, and throughout the period on appeal, the Veteran has frequently described his arthritis symptoms together with his dermatitis symptoms. In fact, August 2016 records indicate that he was advised to stop taking naproxen because it was causing the pseudoporphyria, and he instead began taking Flexeril, a muscle relaxant, and Vicodin, a narcotic pain reliever. As for the Betamethasone, at no point during the period on appeal has the Veteran’s topical treatment constituted “systemic therapy” for the purposes of either version of DC 7806. The Board has considered whether referral for extraschedular consideration is indicated by the record. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. Here, the Veteran had reported other symptoms of the hands, but those are now reflected in the service-connected arthritis of the hands. Accordingly, referral for extraschedular consideration is not warranted. The Board is sympathetic to the lay statements made by the Veteran, his wife, and friend that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Thus, as the evidence is against a finding that the Veteran’s skin disability more nearly approximates the criteria for a higher rating, entitlement to a compensable rating is not warranted. 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. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II (DMII), is remanded. Remand is required for substantial compliance with the October 2020 Board remand instructions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The October 2020 Board remand instructed the RO to add to the Veteran’s claims file any outside treatment records uploaded to Vista imaging, and to provide the Veteran with VA examinations for the sleep apnea claim, and the now service-connected bilateral hand disabilities. Records from Vista imaging were successfully added to the claims file in December 2020. The RO also conducted new VA examinations in December 2020. Remand is required for an addendum VA medical opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The October 2020 Board remand instructed the examiner to address service connection for sleep apnea on a direct basis, and on a basis secondary to the service-connected DMII. The examiner was also instructed to determine whether the DMII caused the Veteran to become obese, whether the obesity as a result of the DMII was a substantial factor in causing the sleep apnea, and whether the sleep apnea would not have occurred but for the obesity caused by DMII. The examiner was also instructed to address a March 2014 article submitted by the Veteran. In a December 2020 medical opinion, the examiner provided a negative nexus opinion on a direct basis. The examiner explained that the service treatment records and separation exam were silent for symptoms related to sleep apnea, and that the Veteran was not diagnosed with sleep apnea until more than 30 years following service. The examiner noted that the Veteran has a history of morbid obesity, and that a review of medical literature shows that obesity is consistently the most important risk factor for sleep apnea. On a secondary basis, the examiner opined that medical literature simply does not support a causal relationship of DMII causing sleep apnea; however, they did not provide any other supporting rationale. Additionally, they failed to address whether the service-connected DMII aggravated the sleep apnea. In addressing the substantial factor question, the examiner explained that it is well known in literature and the medical community that obesity is one of the biggest risk factors in DMII, and not vice versa. The examiner stated that the literature shows that the causes of obesity are multifactorial, with lifestyle being the most important cause, and that the risk of impaired glucose intolerance or DMII rises with increasing body weight. The examiner opined that the sleep apnea would have occurred in the absence of DMII. Although the examiner noted that they reviewed the records included in the October 2020 remand instructions, they failed to actually address the March 2014 article submitted by the Veteran. Accordingly, remand is required for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the obstructive sleep apnea from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea had onset in, or is otherwise related to, active service. (b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea is caused by the service-connected diabetes mellitus, type II. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea is aggravated by the service-connected diabetes mellitus, type II. (d) The examiner must provide an opinion regarding (1) whether the service-connected DMII caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing sleep apnea; and (3) whether the sleep apnea would not have occurred but for the obesity caused by service-connected DMII. (e) The examiner must address an internet article submitted in March 2014, entitled “Type 2 Diabetes and Sleep Apnea.” K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.