Citation Nr: 21029592 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-08 487 DATE: May 14, 2021 REMANDED Entitlement to a rating in excess of 30 percent for eczema from August 10, 2009 to February 9, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to July 2002. This case comes before the Board of Veteran's Appeals (Board) on appeal of a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020 and January 2021, the Board of Veterans' Appeals (Board) remanded the appeal. 1. Entitlement to a rating in excess of 30 percent for eczema from August 10, 2009 to February 9, 2010. The Veteran contended that his eczema worsened in around April or May 2009. See VA 21-4138 Statement In Support of Claim (December 2009). Under the criteria in effect prior to August 13, 2018, the use of a topical corticosteroid can be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1355 (2017). However, systemic therapy is not limited to corticosteroids or immunosuppressive drugs. Consideration is also given to whether a given treatment was "like" a corticosteroid or other immunosuppressive drug to determine whether such treatment constituted systemic therapy. Warren v. McDonald, 28 Vet. App. 194 (2016). For a treatment to be systemic, it must affect the entire body in its treatment of the condition. Consideration must be given on how a topical treatment works and how it affects the body as a whole, not the size of the skin area it is applied to. See Burton v. Wilkie, 30 Vet. App. 286 (2018). The Veteran's eczema is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Ratings are assigned based on the percentage of skin involvement or the duration of systemic therapy such as corticosteroids or other immunosuppressive drugs. To ensure that VA has met its duty to assist, the Board finds that another remand is necessary to obtain an addendum medical opinion in this matter, because the January 2021 medical opinion does not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). First, remand is required because the January 2021 does not adequately address whether the Veteran's medications used to treat his eczema meet the definition of "systemic therapy" and are like or similar to corticosteroids or other immunosuppressive drugs for rating purposes, despite the Board's detailed instructions to do so. See Johnson, Stegall, both supra. The January 2021 VA medical opinion does not specify whether the constant/near constant topical corticosteroids used to treat the Veteran's dermatitis are like or similar to corticosteroids or immunosuppressive drugs. Warren v. McDonald, 28 Vet. App. 194, 197 (2016) (noting that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs). The examiner indicated usage of Clobetasol and Triamcinolone, indicated that the medications treated hands, forearms, elbows and around abdomen as well as lower back and left leg, and found that these are "local areas." The examiner, however, did not discuss whether the Veteran's use of the topical medications is "like" a corticosteroid or other immunosuppressive drug in that it affects the body as a whole and, therefore, constitutes systemic therapy. As this is a medical question outside of the Board's fact-finding proficiency, the Board finds remand for a VA addendum medical opinion must be obtained to resolve this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Furthermore, although the examiner noted usage of Clobetasol and Triamcinolone, and the record shows usage of hydrophilic ointment throughout the day as well as urea cream and hydroxyzine, it is not clear whether these medications constitute systemic therapy and does not provide any information regarding the total duration of use of these medications. See Medical Treatment Record - Government Facility (September 2009); 38 C.F.R. § 4.118(a). As such, the Board finds that a remand is necessary to obtain a VA opinion from a dermatologist to address the Veteran's use of the medications and provide an opinion regarding the required total duration of use of each medication for a 12-month period and whether they affected the body as a whole as well as whether any treatment constituted systemic therapy. Second, in its January 2021 remand, the Board requested a medical opinion that would reflect consideration of (1) the Veteran's medical records, (2) prior VA examinations, and (3) lay statements, including the July 2020 statement in support of claim and the various medical articles identified therein. See BVA Decision (January 2021). However, while the medical opinion obtained on remand identifies some medical records, it does not address the VA examination conducted during the period on appeal in October 2009, any lay statements or any medical articles identified in the Veteran's July 2020 statement. See Stegall, supra; VA 21-4138 Statement In Support of Claim (July 2020). Significantly, in his November 2009 statement, the Veteran reported that he was going to start constant systemic oral medication that week, which falls within the appeal period in question. See VA 21-4138 Statement In Support of Claim (November 2009). A December 2009 email from the Veteran also shows that he was waiting to receive oral medication for his eczema. See VA 21-4138 Statement In Support of Claim (December 2009). Such was not addressed. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a dermatologist to determine the manifestations and severity of the Veteran's service-connected eczema from August 10, 2009 to February 9, 2010. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Obtain a complete medical history of eczema symptoms and treatment. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The report of examination should clearly reflect the following: (a.) Identify all medications used to treat eczema from August 10, 2009 to February 9, 2010 along with the date span of their use. (b.) Indicate, for each medication used from August 10, 2009 to February 9, 2010, whether it represents a systemic therapy such as corticosteroids or other immunosuppressive drugs. (c.) Indicate whether any topical treatment used by the Veteran operates by affecting the body as a whole in treating eczema. (d.) Indicate whether any medication used since from August 10, 2009 to February 9, 2010 is "like" a corticosteroid or other immunosuppressive drug. Explain. (e.) Address and discuss in detail the findings contained in (1) the Veteran's VA treatment records from August 10, 2009 to February 9, 2010, (2) the October 2009 VA examination, (3) the Veteran's lay statements and (4) various medical articles identified in the Veteran's July 2020 statement. Note for the purpose of address the above matters: "Systemic therapy" for VA purposes means "treatment pertaining to or affecting the body as a whole," as distinguished from topical therapy which means "treatment pertaining to a particular surface area that affects only the area to which it is applied." 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED