Citation Nr: 21031084 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-52 433 DATE: May 20, 2021 THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for dermatitis. REMANDED Entitlement to an initial disability rating in excess of 10 percent for dermatitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1998 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a July 2019 decision, the Board granted an increase of 10 percent for the Veteran's dermatitis disability, but denied a higher disability rating. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Joint Motion for Partial Remand (JMR), the Court partially vacated the Board decision and remanded the case to the Board for readjudication. In the January 2021 JMR, the Court explained that the Board failed to adequately explain if the Veteran's use of Ketoconazole shampoo constituted systemic therapy. Thereafter, the case was returned to the Board. Entitlement to an initial disability rating in excess of 10 percent for dermatitis is remanded. The Veteran contends that he is entitled to a disability rating in excess of 10 percent for service-connected dermatitis. After a review of the record and the January 2021 JMR referenced above, the Board finds that a remand is necessary for an additional VA medical opinion. The Veteran's skin disability is rated under DC 7806 for dermatitis or eczema. In this regard, under 38 C.F.R. § 4.118, DC 7806, a noncompensable rating is warranted where the skin disability covers less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy was required during the past 12-month period; a 10 percent rating is warranted where the skin disability covers at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period; a 30 percent rating is assigned when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or by systemic therapy being required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is assigned when the disorder covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or by constant or near-constant systemic therapy being required during the past 12-month period. The Board notes that the 60 percent rating criteria was changed on August 13, 2018, after the Veteran's claim for an increased rating. Since August 13, 2018, a 60 percent rating is warranted for 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. Claims pending prior to the effective date of the new 60 percent rating, such as in the present case, shall be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. As noted in the January 2021 JMR, there is evidence that during the time on appeal, the Veteran used topical medications to treat his disability. Records reflect that the Veteran was prescribed Ketoconazole shampoo between May 2015 and September 2016. See May 2015 dermatology consult note; September 2016 primary care medication management note. In light of the January 2021 JMR and the recently decided Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (topical corticosteroids could conceivably be considered systemic therapy if administered on a large enough scale to affect the body as a whole), the Board must consider whether the Veteran's possible use of antifungal medication, specifically Ketoconazole, may be considered a systemic therapy. In light of the Court's decision in Johnson and the January 2021 JMR, the Board finds that a remand is necessary to obtain a medical opinion which addresses whether any of the Veteran's topical medications prescribed for his skin disability constitute intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate them with the claims folder 2. After completion of the first directive, arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by a specialist in skin disease and/or medical profession in dermatology to determine the nature of the Veteran's treatments for his skin disability for the purpose of preparing an addendum opinion. The entire claims file, including a copy of this remand, must be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. The VA examiner should note the Veteran's past and current skin medications throughout the period on appeal, specifically, those cited in the January 2021 JMR, including Ketoconazole shampoo, triamcinolone, and betamethasone. After identifying all medication used by the Veteran for the service-connected skin disorder during the period on appeal, the examiner should indicate whether each is a systemic therapy that is like or similar to corticosteroids or other immunosuppressive drugs. The examiner is asked to define the periods in which the Veteran used each specific medication. (Continued on next page.) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Attorney Advisor 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.