Citation Nr: 21021152 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-36 119 DATE: April 9, 2021 REMANDED Entitlement to service connection for a left index finger injury, to include as secondary to the service-connected right knee disability, is remanded. Entitlement to service connection for loss of visual acuity in the left eye is remanded. Entitlement to service connection for a thoracolumbar spine condition, to include as secondary to the service-connected right knee disability, is remanded. Entitlement to service connection for a left knee condition, to include as secondary to the service-connected right knee disability, is remanded. Entitlement to service connection for left lower extremity lumbar radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to an increased rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to a compensable disability rating prior to January 11, 2016; for psoriasis, in excess of 10 percent from January 11, 2016, and in excess of 30 percent from August 17, 2020, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.   REASONS FOR REMAND The Veteran had active service in the United States Navy from March 1978 to March 1981. This appeal was remanded by the Board in December 2018 for additional development. Following the December 2018 Board remand, the VA Regional Office issued a rating decision in August 2020 granting increases in the Veteran’s service-connected psoriasis to 30 percent, effective August 17, 2020. The Board finds that although the Veteran has been granted increased disability rating, it does not constitute a full grant of the benefits sought on appeal; therefore, the claims remain for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, these appeals will be adjudicated contemplating the highest rating available to the Veteran. The Veteran, through his attorney, filed a VA Form 20-0996 Request for Higher-Level Review, seeking review of the effective date of the 30 percent rating granted in the August 2020 rating decision. This election is invalid. The appeal for an earlier effective date for the award of 30 percent for psoriasis is subsumed by the appeal of the claim for an increased disability rating for psoriasis because the partial grant of a higher staged rating for part of the appeal period was not a full grant of the benefit sought on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018); compare Hazan v. Gober, 10 Vet. App. 511 (1997) (a claim for an earlier effective date for the award of a particular disability rating is a distinct issue appealable to the Board.). As such, the Veteran did not need to file an NOD as to the effective date issue. Moreover, different components of the same claim appealed under the Legacy system may not be split off into a separate appeal under the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act). See § 3.151(c)(2); 83 Fed. Reg. 39818, 39822 (Aug. 10, 2018). Here, the appeal for an earlier effective date for the 30 percent rating is a component of the Legacy appeal for a higher rating for psoriasis. Hence, the Veteran’s Request for Higher Level Review is an invalid election. The issues of service connection for an acquired psychiatric disorder and hearing loss were remanded by the Board in April 2020. Those issues remain pending the directed development at the RO. They will be the subject of a separate Board decision at a later time. See 38 C.F.R. § 19.38. 1. Entitlement to service connection for a left index finger injury, to include as secondary to the service-connected right knee disability, is remanded. Generally relevant to all claims, including 1, a remanded is needed to allow the Veteran’s attorney the opportunity to review prior VA examiners’ qualifications. The questions of “whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries.” See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). However, this presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, “[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion.” Id. at 1381. According to October 2020 Supplemental Remarks, the Veteran’s representative challenged the competency of the VA examiners who administered the September 2019 and November 2019 VA examinations following the Board remand. Specifically, the representative identified the VA examiners who conducted the VA examinations pertaining to the Veteran’s left eye disability, left index finger injury, thoracolumbar spine disability, and the left knee disability. (Additionally, the Board notes that as the VA examination for the right knee disability claim was conducted by the same VA examiner who conducted examination for the left knee disability claim, the claim of an initial rating in excess of 10 percent for right knee patellofemoral syndrome is included in this remand.) Given the representative’s challenge to the VA examiner’s qualifications, the duty to assist mandates that the claimant “has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner.” Id. Accordingly, on remand, to the extent possible, the VA examiner’s curriculum vitae (CV) for the VA examiners and any additional information regarding his/her qualifications should be obtained, associated with the record, and provided to the Veteran and his representative for review. Furthermore, the December 2018 Board remand instructed the Veteran to “complete a VA Form 21-4142 for treatment of his left finger injury and amputation at Waccamaw Hospital and the Murell’s Inlet Emergency Room in 2015.” While the record reflect that the Veteran was sent this request with the appropriate VA forms, it was not completed. On remand, another attempt should be made to obtain these records. At this time, the Veteran is reminded that participation in the VA adjudication process is a two-way street, failure to participate will hamper VA’s attempts to fairly and fully adjudicate his claim and may go against his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a “two-way street”). 2. Entitlement to service connection for loss of visual acuity in the left eye is remanded. According to the October 2020 Supplemental Remarks, the Veteran’s representative contends that the September 2019 VA examination pertaining to the left eye disability was inadequate. The representative stated that while the etiology of the Veteran’s cataracts was addressed, the diagnosis of central macular scar versus. macular degeneration was not. The Board agrees with the Veteran’s representative and finds an addendum opinion clarifying this point is warranted. 3. Entitlement to service connection for a thoracolumbar spine condition, to include as secondary to the service-connected right knee disability, is remanded. 4. Entitlement to service connection for a left knee condition, to include as secondary to the service-connected right knee disability, is remanded. Issues 2-3 are remanded for a new VA opinion. According to the Veteran’s representative’s Supplemental Remarks, the November 2019 VA examination of the knees, which found the Veteran’s left knee was normal, was inadequate. Specifically, the Veteran’s representative contends that the VA examiner failed to address the Veteran’s diagnosis of a left knee strain as noted in the February 2014 VA examination report, the abnormal range of motion as indicated in the January 2016 VA examination report, and the Veteran’s lay statements regarding his left knee pain. See Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Furthermore, the representative submitted medical articles/treatises indicating “unilateral knee condition causes overuse of the other knee which of course results in stain and pain in that overused knee.” Similarly, regarding the Veteran’s thoracolumbar spine disability, the representative stated that contrary to the VA examiner’s determination that the medical literature did not show a relationship between knee conditions and a back disability, there were several medical articles that suggested a connection. Several medical articles/treatises were submitted in conjunction with the Supplemental Remarks. Here, the Board agrees and finds an addendum opinion is warranted. 5. Entitlement to service connection for left lower extremity lumbar radiculopathy, is remanded. 6. Entitlement to service connection for right lower extremity radiculopathy, is remanded. This issue is remanded for a new VA opinion. According to the November 2019 VA examination of the back, radiculopathy of the bilateral lower extremities was not found. However, the Veteran’s representative stated in the Supplemental Remarks that radiculopathy was noted in prior examinations. For example, according to an April 2013 private treatment record, the Veteran was diagnosed with lumbar radiculitis. The most recent VA examination did not adequately address this evidence. As such, a new addendum opinion is warranted addressing this conflicting evidence. 7. Entitlement to an increased rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. This issue is remanded for a new VA examination. While the record contains contemporaneous VA examinations regarding the Veteran’s right knee disability, the examinations do not comply with the requirements Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At the most recent examination, in November 2019, the Veteran denied flare-ups, and the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. However, the Veteran indicated functional limitations with climbing, walking, stair climbing, and squatting, which indicates functional loss with repeated use over time. The examiner did not measure or attempt to estimate additional loss of function in degrees after repeated use over time. 8. Entitlement to an increased disability rating for psoriasis is remanded. This issue is remanded for a new VA examination. Psoriasis is to be rated either under 38 C.F.R. § 4.118, Diagnostic Code 7816 or as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. During the pendency of this appeal, the VA amended the criteria for rating skin disabilities effective from August 13, 2018. Review of the claims file reveals an April 2011 VA treatment note indicating that the Veteran had a rash on his hands from psoriasis. No flare-ups were reported. Clobetasol was discontinued as a treatment due to concerns over the effect on his macular degeneration issues. The Veteran underwent a VA examination in November 2012 where he reported dry hands bilaterally, treated with creams and ointments. No scarring or disfigurement of the face or neck was indicated. Use of topical corticosteroids (Clobetasol cream) and other topical medications (ammonium lactate lotion) was reported constantly/near-constantly. No other treatments were documented. Upon physical examination, the VA examiner noted that less than five percent of the total body and less than five percent of exposed areas were affected by the psoriasis. The VA examiner described that the bilateral heels of the Veteran’s hands were red and scaly with residual papules and pustules. An October 2013 VA treatment note described the Veteran’s psoriasis as stable. In June 2015, the Veteran was seen for a VA dermatology consultation. He reported a rash on the right thigh and abdomen, as well as documented psoriasis on the right hand. He described the right leg as sometimes itchy but otherwise asymptomatic. In October 2015, a VA treatment note recorded no active areas of psoriasis. However, the treatment provider described the presence of morphea on the right hip and knee areas. He recommended systemic treatment for that condition. Plaquenil was recommended for treatment, although the provider advised that it might worsen the separate psoriasis condition. Ultimately, the ophthalmologist advised against the use of Plaquenil, and the Veteran was prescribed Minocycline in November 2015. In December 2015, the Veteran submitted a statement describing a significant breakout on his leg as well as psoriasis on his upper extremities. The Veteran underwent further VA examination in January 2016. The examiner noted a diagnosis of psoriasis and no other skin conditions. A current skin lesion was evident on the right buttocks and thigh. No scarring of the face, neck, or head was indicated. Use of topical corticosteroids (Clobetasol cream) and other topical medications (ammonium lactate lotion) was reported constantly/near-constantly. Oral medication (Minocycline) was noted for less than six weeks. No other treatments were documented. Upon physical examination, the VA examiner noted that between 5 to 20 percent was affected by the psoriasis. No exposed areas were affected. In December 2016, the Veteran sought to renew his prescription for Minocycline, but it appears that it ultimately expired without renewal. In December 2018, the Board was unable to render a decision on the appropriate ratings for the Veteran’s service-connected psoriasis without further medical input addressing the Veteran’s psoriasis symptoms and treatment and distinguishing psoriasis from morphea. Following the December 2018 Board remand, a VA medical opinion was obtained from a physician in August 2020 who stated that upon review of the Veteran’s treatment records, the Veteran had a diagnosis of morphea but not psoriasis. The VA physician determined that the “area described as psoriasis in the [VA examination] in January 2016 was later described as morphea in the Dermatology consult performed in March 2016.” The morphea was 5 to 20 percent of the Veteran’s body surface area with less than 5 percent exposed surface area. The Veteran’s current topical medications included ammonium lactate cream 12% and clobetasol propionate 0.05%, which was described as a “super-high potency corticosteroid.” The indications for ammonium lactate was ichthyosis vulgaris and xerosis cutis. The Veteran had been using clobetasol since he was initially diagnosed with morphea in July 2015. He was last prescribed Minocycline at a March 2016 Dermatology consult when he was most recently diagnosed with morphea. The Veteran was originally place on Minocycline (an antibiotic used to treat acne) in November 2015. At the forefront, the Board finds clarification is needed whether the topical corticosteroids the Veteran uses, specifically Clobetasol, can be considered systemic therapy given the evidence of record. Here, the April 2011 VA treatment note raises the question whether Clobetasol is a systemic topical corticosteroid. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). It remains unclear whether the Veteran’s use of topical corticosteroid, Clobetasol, amounts to systemic therapy. This is a medical question outside of the Board’s fact-finding ability. See Colvin v Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, upon remand, a VA addendum medical opinion must be obtained to resolve this issue. 9. Entitlement to a TDIU is remanded. With respect to the Veteran’s claim for a TDIU, the Board finds that this claim is inextricably intertwined with the pending development for the increased disability rating and service connection claims. The claim for entitlement to a TDIU cannot be reviewed while the pending claims remain unresolved. Thus, adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran’s increased disability rating and service connection claims. The matters are REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142 for treatment of his left finger injury and amputation at Waccamaw Hospital and the Murell’s Inlet Emergency Room in 2015. Make two requests for the authorized records from these facilities unless it is clear after the first request that a second request would be futile. 2. Contact the VA examiner who provided the November 2019 VA examinations related to the Veteran’s service connection claims for a left eye disability, a thoracolumbar spine disability, and knee disabilities and request that they provide a copy of their CV. Upon receipt of such, associate them with the record and provide the Veteran and his representative a copy thereof. If the requested CV is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. 3. Obtain an addendum opinion to the November 2019 VA examination regarding the etiology of the Veteran’s left eye disability, specifically, addressing the diagnosis of central macular scar vs. macular degeneration. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. Following the review of the claims file, the VA examiner is then asked whether it is at least as likely as not that the Veteran’s left eye disability, to include central macular scar vs. macular degeneration had its onset in service or is otherwise directly related to service? Why or why not? The VA examiner must consider and address the November 2019 VA finding and opinion, as well as the Veteran’s lay statements regarding his symptomatology. 4. Obtain an addendum opinion to the November 2019 VA examination regarding the etiology of the Veteran’s left knee disability following review of the medical articles submitted by the Veteran’s representative in October 2020. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. Following the review of the claims file, the VA examiner is then requested to respond to the following: (a.) The examiner must provide a diagnosis for any conditions found extent in the left knee. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, does the Veteran nevertheless have any functional impairment in the left knee? In answering questions (a) and (b), the VA examiner must consider and address all findings and opinions in prior relevant VA examinations and post-treatment records. The VA examiner is asked to specifically address the diagnosis of a left knee strain as noted in the February 2014, the abnormal range of motion as indicated in the January 2016 VA examination, and the Veteran’s lay statements regarding his left knee pain. (c.) If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition is at least as likely as not related to an in-service injury, event, or disease. Why or why not? (d.) Is it at least as likely as not that the Veteran’s left knee condition is proximately due to or caused by a service-connected disability, to include a right knee disability? Why or why not? (e.) Is at least as likely as not that the Veteran’s left knee condition has been aggravated (made worse) by a service-connected disability, to include a right knee disability? Why or why not? The VA examiner is also asked to consider and address the medical articles/treatises submitted by the Veteran’s representative in October 2020. 5. Obtain an addendum opinion to the November 2019 VA examination regarding the etiology of the Veteran’s thoracolumbar spine and radiculopathy disabilities following review of the medical articles submitted by the Veteran’s representative in October 2020. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. Following the review of the claims file, the VA examiner is then requested to respond to the following: (a.) Is at least as likely as not that the Veteran’s thoracolumbar spine disability had its onset in service or is otherwise directly related to service? Why or why not? (b.) Is it at least as likely as not that the Veteran’s thoracolumbar spine disability is proximately due to or caused by a service-connected disability, to include a right knee disability? Why or why not? (c.) Is at least as likely as not that the Veteran’s thoracolumbar spine disability has been aggravated (made worse) by a service-connected disability, to include a right knee disability? Why or why not? The VA examiner is also asked to address conflicting findings regarding the absence of radiculopathy in November 2019 and the prior findings of lumbar radiculitis in an April 2013 private treatment record. The VA examiner must consider and address all findings and opinions in prior relevant VA examinations and post-treatment records, the medical articles/treatises submitted by the Veteran’s representative in October 2020, as well as the Veteran’s lay statements regarding his symptomatology. 6. Schedule the Veteran for a VA examination to assess the severity of his right knee disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and degree of functional loss during flare-ups and after repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Schedule the Veteran for an examination to assess the severity of his service-connected skin condition. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) For any medication taken, including topical Clobetasol cream, the examiner must identify (1) whether it is a systemic therapy (including a topical medication that affects the entire body as a whole in its treatment of the skin condition), and (2) whether it is, or is like, a corticosteroid or immunosuppressive drug. If any medication is not equivalent, it should be explained why this is so. (c.) Unretouched color photographs must be taken. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.