Citation Nr: 21025575 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-49 429 DATE: April 28, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for headaches is reopened, and to this extent only the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted. Entitlement to an initial compensable evaluation of 30 percent, but no higher, for dyshidrotic eczema, from April 14, 2014 to April 27, 2017, is granted. Entitlement to an evaluation in excess of 10 percent for dyshidrotic eczema, since April 27, 2017, is denied. REMANDED Entitlement to service connection for residuals of traumatic brain injury is remanded. Entitlement to service connection for headaches, including secondary to inservice traumatic brain injury, is remanded. Entitlement to service connection for hearing loss, including secondary to inservice traumatic brain injury, is remanded. Entitlement to service connection for a bilateral eye disorder, including secondary to inservice traumatic brain injury is remanded. Entitlement to service connection for dizzy spells, including secondary to inservice traumatic brain injury is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU rating) is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the RO denied the Veteran’s original claim seeking entitlement to service connection for headaches. The Veteran filed a timely notice of disagreement contesting this decision, and in October 2016, the RO issued a statement of the case addressing this issue. 2. The Veteran did not subsequently perfect an appeal of the December 2013 rating decision or submit new and material evidence during the appeal period, and that decision is final. 3. Some of the evidence received since the December 2013 rating decision is new and relates to unestablished facts necessary to substantiate the Veteran’s claim for entitlement to service connection for headaches. 4. In an August 2014 rating decision, the RO denied the Veteran’s original claim seeking entitlement to service connection for bilateral hearing loss. The Veteran filed a timely notice of disagreement contesting this decision, and in October 2016, the RO issued a statement of the case addressing this issue. 5. The Veteran did not subsequently perfect an appeal of the August 2014 rating decision or submit new and material evidence during the appeal period, and that decision is final. 6. Some of the evidence received since the August 2014 rating decision is new and relates to unestablished facts necessary to substantiate the Veteran’s claim for entitlement to service connection for bilateral hearing loss. 7. From April 14, 2014 to April 27, 2017, the Veteran’s dyshidrotic eczema affected an area of less than 5 percent of his entire body and less than 5 percent of the exposed areas of his dyshidrotic eczema; and required intermittent systemic therapy with Lamisil for a total duration of six weeks or more per year, but not constantly. 8. Since April 27, 2017, the Veteran’s dyshidrotic eczema affected an area of less than 20 percent of the entire body; less than 20 percent of the exposed areas; and did not require systemic therapy. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for an initial evaluation of 30 percent, but no higher, for dyshidrotic eczema, from April 14, 2014 to April 27, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 4. The criteria for entitlement to an evaluation in excess of 10 percent for dyshidrotic eczema, since April 27, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1971 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016, June 2017, and February 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The October 2016 rating decision, in pertinent part, granted service connection at a noncompensable initial evaluation for dyshidrotic eczema, effective April 14, 2014. In June 2017, based upon evidence received within one year of the October 2016 rating decision, the RO issued a rating decision which, in pertinent part, awarded an increased evaluation of 10 percent for the Veteran’s dyshidrotic eczema, effective April 27, 2017. The Board notes that the Veteran and his attorney have indicated that he seeks both entitlement to an increased evaluation for his service-connected dyshidrotic eczema, as well as entitlement to an effective date prior to April 27, 2017, for the award of an increased 10 percent evaluation for this condition. For the sake of clarity, the Board is addressing the staged initial evaluation (0 percent prior to April 27, 2017, and 10 percent thereafter) assigned to the Veteran’s dyshidrotic eczema since the initial grant of service connection for this condition, effective April 14, 2014. See 38 C.F.R. § 3.156(b) (new and material evidence received prior to the expiration of the appeal period). Thus, it would be duplicative to again address the same issue as a separate claim for an effective date prior to April 27, 2017, for the award of a 10 percent evaluation for dyshidrotic eczema. New and Material Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. In a December 2013 rating decision, the RO denied the Veteran’s original claim seeking entitlement to service connection for headaches. The Veteran filed a timely notice of disagreement contesting this decision, and in October 2016, the RO issued a statement of the case addressing this issue. The Veteran did not subsequently perfect an appeal of the December 2013 rating decision or submit new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. In an August 2014 rating decision, the RO denied the Veteran’s original claim seeking entitlement to service connection for bilateral hearing loss. The Veteran filed a timely notice of disagreement contesting this decision, and in October 2016, the RO issued a statement of the case addressing this issue. The Veteran did not subsequently perfect an appeal of the August 2014 rating decision or submit new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. The evidence considered at the time of the December 2013 and August 2014 rating decisions included service treatment records, VA treatment records, and statements from the Veteran. Both of these service connection claims were denied because the Veteran’s current headaches and bilateral hearing loss were not shown to have been related to his military service. Some of the evidence received since the December 2013 and August 2014 rating decisions is new and relates to unestablished facts necessary to substantiate the Veteran’s claims for entitlement to service connection for headaches and bilateral hearing loss. Since these decisions, the Veteran has alleged that his headaches and bilateral hearing loss are related to an inservice traumatic brain injury. Moreover, he since submitted statements contending that he has had ongoing headaches and bilateral hearing loss ever since this inservice injury. Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Finally, he has submitted a July 2019 medical opinion suggesting that the Veteran has a traumatic brain injury which was incurred during service, and that the Veteran’s headaches developed secondary to this disability. As the threshold to reopen the claim is low, the Board finds that this evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claims of entitlement to service connection for headaches and bilateral hearing loss are reopened. Increased Initial Evaluation for Dyshidrotic Eczema The Veteran contends that his dyshidrotic eczema warrants a higher evaluation. The Veteran’s dyshidrotic eczema is rated under Diagnostic Code 7806, used in evaluation eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. 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. Prior to August 13, 2018, under Diagnostic Code 7806, used in rating eczema, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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 for 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 assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. 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. 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. 3. Entitlement to an initial compensable evaluation for dyshidrotic eczema, from April 14, 2014 to April 27, 2017. Here, the evidence of record demonstrates that the predominant disability of the Veteran’s dyshidrotic eczema is skin rash on his hands and feet. Based upon a longitudinal review of the evidence of record, the Board concludes that from April 14, 2014 to April 27, 2017, the Veteran’s dyshidrotic eczema warrants an initial evaluation of 30 percent, but no higher. Throughout this time frame, the Veteran’s dyshidrotic eczema affected an area of less than 5 percent of his entire body and less than 5 percent of the exposed areas of his dyshidrotic eczema; and required intermittent systemic therapy with Lamisil for a total duration of six weeks or more per year, but not constantly. The types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. See Warren v. McDonald, 28 Vet. App. 194, 197 (2016) (in which oral ingestion of Lamisil was deemed to be "systemic" therapy for treatment of onychomycosis). A VA examination of the skin was conducted in June 2014. The VA examiner noted that the Veteran’s claims file was reviewed, his contentions were noted, and a physical examination of the Veteran was conducted. The examination report noted a diagnosis of dyshidrotic eczema, which did not result in any scarring or disfigurement of the head, face, or neck; did not result in any benign or malignant skin neoplasms, and did not result in any systemic manifestations due to any skin diseases. The report noted that the Veteran had been treated with this condition through oral medications (Lamisil) for six weeks or more in the past 12 months, but not constant. It was also treated with Urea Cream (20 percent) applied topically for less than six weeks out of the past 12 months. No debilitating or non-debilitating episodes were noted in the past 12 months. Physical examination revealed that the Veteran’s dyshidrotic eczema involved an area of less than 5 percent of his total body area and less than 5 percent of his exposed area. The examiner noted that his skin was thick on the palms of his hands and fingers, and there were very superficial fissures on his right palm and fingers. There was no bleeding or dried blood present, some of the lines and creases of the hands and fingers had very fine scaling, and there was callous on the heels of the feet with superficial fissures. A review of the Veteran’s post service treatment records reflect that he underwent two periods of treatment with Lamisil, taken orally, in December 2013 and again in April 2015. An evaluation in excess of 30 percent is not shown to be warranted at any time from April 14, 2014 through April 27, 2017. There are no objective findings during this time frame that his dyshidrotic eczema affected an area of 40 percent or more of his entire body or exposed areas. Moreover, his use Lamisil, which the Board accepts as being like a corticosteroid or other immunosuppressive drug, is not shown to have been constant or near constant during any year period. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include skin rashes, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. Accordingly, an increased initial evaluation of 30 percent, but no higher, is warranted for the Veteran’s dyshidrotic eczema from April 14, 2014 to April 27, 2017. 4. Entitlement to an evaluation in excess of 10 percent for dyshidrotic eczema, since April 27, 2017. Based upon a longitudinal review of the evidence of the record, the Board concludes that the Veteran’s dyshidrotic eczema does not warrant an evaluation in excess of 10 percent at any time since April 27, 2017. Since April 27, 2017, the Veteran’s dyshidrotic eczema affected an area of less than 20 percent of the entire body; less than 20 percent of the exposed areas; and was not treated with systemic therapy. Thus, a higher evaluation is not warranted under either the old or new rating criteria. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017 and 2020). The June 2017 VA examination for skin disease noted the Veteran’s complaints of stinging, burning, swelling, and fissuring of his hands when exposed to caustic environments with minimal provocation. He denied having any incapacitating episodes relating to this condition in the past twelve months. His current treatment consists of Urea Cream (20 percent) applied topically to the affected areas daily. The VA examiner noted that this condition has not resulted in any scarring or disfigurement of the head, face, or neck; has not resulted in any benign or malignant skin neoplasms, and has not resulted in any systemic manifestations due to any skin diseases. Physical examination revealed that this eczema affects an area of less than 5 percent of his total body and less than 5 percent of his exposed area; and that his dermatitis affects an area of less than 5 percent of his total body and less than 5 percent of his exposed area. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s dyshidrotic eczema does not more nearly approximate 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. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s dyshidrotic eczema does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include skin rashes, and his reports are credible. Jandreau, 492 F.3d at 1377. However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. Even considering the combined area involving both his dermatitis and eczema, the area affected is less than that required for a higher rating. Moreover, no systemic treatment for this condition is shown during this time frame. Accordingly, an increased evaluation in excess of 10 percent is not warranted at any time since April 27, 2017. 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 residuals of traumatic brain injury. 2. Entitlement to service connection for headaches, including secondary to inservice traumatic brain injury 3. Entitlement to service connection for hearing loss, including secondary to traumatic brain injury. 4. Entitlement to service connection for a bilateral eye disorder, including secondary to a traumatic brain injury. 5. Entitlement to service connection for dizzy spells, including secondary to inservice traumatic brain injury. A review of the evidence of record reflects that additional pertinent treatment records have yet to be obtained. A February 2013 VA treatment report noted the Veteran history of being injured when he was run over by a boat. The Veteran reported that he was knocked to the floorboard during this incident and injuring his neck. A September 2013 statement from the Veteran’s employer noted that they were careful with the Veteran due to his “previous injuries to his neck and back.” Under the circumstances of this case, an attempt should be made to obtain any available treatment records relating to these injuries. The Board cannot make a fully informed decision on the issue of traumatic brain injury. Initially, it appears there are pertinent treatment records which still need to be obtained. Moreover, the evidence currently of record is conflicting as to whether the Veteran currently has a traumatic brain injury and residuals therefrom. In addition, the opinions which have been obtained appear to have been given without full consideration to the Veteran’s entire medical history. For instance, both the private and VA examiner failed to obtain adequate details concerning the Veteran’s reported post service boating accident. Finally, while the Veteran is qualified to report much of the symptomatology at issue herein, consideration must still be given to symptomatology reported by him as contained in his available medical records. Under these circumstances, a new VA examination shall be conducted to determine if the Veteran currently has any residuals of a traumatic brain injury and whether any such residuals are related to his military service. 6. Entitlement to TDIU. Finally, because a decision on the remanded issues herein could significantly impact a decision on the issue entitlement to TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is also required. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have: (a) recently treated him; and/or (b) treated him at any time prior to 2013 for any of his claimed disabilities. The Veteran should also be asked to (a) identify when he was injured after being struck in a boating accident, and identify the names and addresses of any medical care providers who were seen in relationship to these injuries: and (b) identify when he incurred any other injuries to his neck and back, and identify the names and addresses of any medical care providers who were seen in relationship to these injuries. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the nature and possible relationship to service of the Veteran's claimed traumatic brain injury, including residuals of dizziness, vision loss, hearing loss, and headaches. The Veteran's entire claims file, to include this remand, must be reviewed prior to performing the examination, including specifically the February 2018 VA examination for residuals traumatic brain injury, with supplemental medical opinion; and the July 2019 private evaluation and medical opinion by K.B., Psy.D. The examiner is to state whether the Veteran currently displays any symptoms of a TBI, to include his claimed dizziness, vision problems, hearing loss, and headaches. If the examiner determines that the Veteran shows any symptoms of a TBI, then the examiner is to state whether it is at least as likely as not that such identified symptoms are related to or had their onset during the Veteran's active service, to include his in-service truck accident. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. (Continued on next page) Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.