Citation Nr: 21030036 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-46 477 DATE: May 17, 2021 REMANDED Entitlement to a compensable rating for service-connected dermatophytosis (skin condition) prior to October 19, 2015, and a rating in excess of 30 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The matter was previously before the Board in February 2019, wherein the Board denied a compensable rating for the Veteran's skin condition prior to October 19, 2015 and granted a rating of 30 percent thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board failed to provide any discussion as to whether the Veteran's topical corticosteroid use might be considered systemic therapy under the pre-amendment version of the regulation under Diagnostic Code 7806. The matter was remanded by the Board in July 2020 for an addendum medical opinion to address whether the Veteran's use of topical corticosteroid might be considered systemic therapy under the pre-amendment version of the regulation. In December 2020, a VA medical opinion was obtained. The matter returned before the Board in February 20021, when the Board found that the December 2020 medical opinion was inadequate as it failed to comply with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran also appealed entitlement to service connection for chronic kidney disease. This issue was remanded by the Board in March 2021. As this issue is being developed by the RO, it is not currently before the Board. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The February 2021 Board decision found that the December 2020 VA examiner's opinion that the Veteran was not treated with Triamcinolone and Fluocinolone was not supported by the record. For example, in the March 2013 Disability Benefits Questionnaire (DBQ), the VA examiner had indicated that the Veteran's dermatophytosis was treated with triamcinolone, a topical corticosteroid, on a constant/near-constant basis during the past twelve months. See March 2013 VA DBQ. Also, in the October 2015 private DBQ submitted by the Veteran, the physician noted that the Veteran used Fluocinolone, a topical corticosteroid, on a constant/near-constant basis during the past twelve months. See October 2015 Private DBQ. The Veteran's July 2020 VA active medication list included Fluocinolone Acetonide. See July 2020 VA Nursing Outpatient Note in CAPRI, received December 2020. As the December 2020 VA medical opinion was based on inaccurate facts and lacked probative weight, the February 2021 Board decision found that another remand was required to obtain an addendum opinion that fully complied with and addressed the issues required by the February 2020 JMPR. An addendum medical opinion was obtained in March 2021. The examiner was asked to identify each topical medication prescribed to treat the dermatophytosis during the appellate period. She stated that the active medication list from VAMC notes Fluocinolone, but there is no indication that fluocinolone is used for a fungal dermatophytosis. The examiner also stated that there are no medications prescribed to treat the dermatophytosis as a corticosteroid is not a customary treatment for a fungal infection. The examiner noted that the dermatophytosis is located to the feet and discussed other topical steroids that reduce inflammation at the site but did not specifically discuss the Veteran's treatment for dermatophytosis. When asked to provide an opinion as to whether each topical non-steroidal medication for the treatment of dermatophytosis or other immunosuppressive drug constitutes systemic therapy, the examiner responded the she was unable to locate use of a topical non-steroidal medication for the treatment of dermatophytosis or other immunosuppressive drug. Additionally, the examiner was asked to identify whether any medications were prescribed for the treatment of another skin disability and she stated that Fluocinolone was prescribed for eczema of the hands. Here, the addendum opinion once again appears to be based on an inaccurate factual premise because the VA examiner found that there was no indication that the Fluocinolone was used for the Veteran's dermatophytosis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.) In this regard, a November 2020 VA skin examination examiner was conducted, and the examiner noted that the Veteran was treated with Fluocinolone Acetonide 0.01% specifically for dermatophytosis in the past twelve months. Additionally, as previously discussed above, the October 2015 private physician noted that the Veteran used Fluocinolone on a constant/near-constant basis during the past twelve months and the July 2020 VA treatment record noted Flucinolone Acetonide as an active medication. Furthermore, the opinion is contradictory and confusing as the examiner stated that there was no indication the Veteran was treated with Fluocinolone and then later stated that he was prescribed Fluocinolone and Triamcinolone for his dermatophytosis. As such, an addendum medical opinion must be obtained to provide clarity as to the treatment prescribed for the Veteran's dermatophytosis and adequately addresses the deficiencies as noted in the February 2020 JMPR and February 2021 Board decision. The February 2021 Board decision also observed that the December 2020 medical opinion was provided by a physician in general practice, obstetrics, and gynecology. The Board noted that on remand, the addendum medical opinion should be obtained from a dermatologist or medical professional with appropriate expertise to evaluate dermatological disabilities. The March 2021 addendum medical opinion was conducted by a physician's assistant. VA regulations do not specifically require an examiner to be a medical doctor. Under 38 C.F.R. § 3.159(a)(1), competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. A physician's assistant or nurse practitioner, having completed medical training, meets the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. However, as the February 2021 Board decision indicated that the medical opinion should be conducted by an expertise in dermatological disabilities, on remand, a professional with knowledge in dermatological disabilities should provide the addendum opinion. The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion, from a medical profession who is a dermatologist or with appropriate expertise in dermatological disabilities, other than the December 2020 or March 2021 VA examiners, to address the claim for an increase for the service-connected dermatophytosis. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify each topical medication prescribed to treat the Veteran's dermatophytosis at any time during the claim period (i.e., from February 2011 to the present). b) If any of these medications were prescribed for the treatment of another skin disability (other than the dermatophytosis), identify those medications. c) If the Fluocinonide and Triamcinolone were prescribed for the service-connected dermatophytosis, or other topical or steroid medication, please provide an opinion as to whether the use of either or any of these topical steroidal creams constituted systemic therapy. In rendering this opinion, the examiner must discuss whether the Veteran's treatment for dermatophytosis was administered on a large scale or only on the Veteran's feet; and the method by which the topical treatment for dermatophytosis works, and its side effects. The examiner is reminded that systemic therapy is defined as a therapy that affects the body as a whole even if it is not applied to the entire body. d) For each topical non-steroidal medical for the treatment of dermatophytosis that are "like" a corticosteroid or other immunosuppressive drug, provide an opinion as to whether each constitutes systemic therapy. The examiner is reminded that systemic therapy is defined as a therapy that affects the body as a whole even if it is not applied to the entire body. The examiner must also discuss the method by which the topical treatment works, as well as any known side effects. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, Associate 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.