Citation Nr: 21031271 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 10-10 853 DATE: May 21, 2021 REMANDED Entitlement to an initial compensable rating for tinea capitis and seborrheic dermatitis (previously rated as both tinea capitis and as dermatophytosis with recurrent eruptions) prior to October 16, 2012, and in excess of 60 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from April 1983 to May 1985, from April 1991 to June 1991, from January 1997 to July 1997, and from March 1998 to July 2006. She also had service in the U.S. Air Force Reserve and the Air National Guard, to include a period of active duty for training from October 1988 to October 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By that decision, the RO granted service connection and a 0 (zero) percent (noncompensable) rating for tinea capitis, effective July 20, 2006. In a November 2008 rating decision, the RO recharacterized the Veteran's skin disability as dermatophytosis with recurrent eruptions and continued the prior noncompensable rating. In a January 2013 rating decision, the RO in Roanoke, Virginia increased the rating from 0 to 60 percent, effective October 16, 2012. Subsequently, the RO recharacterized the disability as tinea capitis and seborrheic dermatitis. The Board notes that while an August 2015 rating decision reduced the Veteran's rating for her skin disability from 60 to 30 percent, effective July 23, 2015, an August 2017 rating decision implemented a Board determination that the reduction was improper and restored the Veteran's 60 percent rating, effective July 23, 2015. Therefore, her skin disability has thus far been rated as 0 percent disabling prior to October 16, 2012, and 60 percent disabling thereafter. This case was previously before the Board in February 2017, August 2017, December 2018, and October 2020. In February 2017, the Board stayed the issue of entitlement to a higher rating for the Veteran's skin disability pending the outcome of Johnson v. McDonald, 27 Vet. App. 497 (2016), which VA had appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit subsequently issued its decision in that case, currently identified as Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In August 2017, the Board denied the Veteran's claim for a compensable rating for her skin disability prior to October 16, 2012, and in excess of 60 percent thereafter. The Veteran appealed the Board's August 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through her attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. In December 2018 and October 2020, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. Entitlement to an initial compensable rating for tinea capitis and seborrheic dermatitis prior to October 16, 2012, and in excess of 60 percent thereafter, is remanded. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure substantial compliance with the directives of the JMPR. See Stegall v. West, 11 Vet. App. 268 (1998). In the June 2018 JMPR, the parties agreed that, regarding the appeal period prior to October 16, 2012, the Board had erred in four respects. These were that the Board had failed to make clear whether the Veteran's skin disability resulted in at least one characteristic of disfigurement, whether the criteria for a compensable rating were met based on flare-ups, whether the medications used by the Veteran were similar to corticosteroids or other immunosuppressive drugs such that they could be considered systemic therapy, and whether the Veteran had any scars which were painful that would warrant a compensable rating. As to the appeal period from October 16, 2012, the parties agreed that the Board had not fulfilled its duty to assist the Veteran in obtaining potentially relevant records of private treatment. In its December 2018 remand, the Board directed the AOJ to obtain all outstanding VA treatment records and to provide the Veteran another opportunity to identify, and to provide an appropriate release for, records of any private treatment she had received in connection with the issue on appeal. The Board also directed the AOJ to afford the Veteran another VA examination. The AOJ obtained updated VA treatment records in September, November, and December 2019, and afforded the Veteran a new VA examination in October 2019. In its October 2020 remand, the Board found that the AOJ had not substantially complied with the December 2018 remand directive regarding private treatment records, and it remanded the claim again for the sole purpose of instructing the AOJ to ask the Veteran to identify and provide an appropriate release for records of any private treatment she had received in connection with the issue on appeal. Thereafter, in both October 2020 and November 2020, the AOJ sent the Veteran a letter asking her to identify and provide an appropriate release for records of private treatment. To date, the Veteran has not responded to those requests. In this regard, the Veteran is reminded that VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, she cannot passively wait for it in circumstances where she may or should have information that is essential to the outcome of her claim. Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam). If she is to have a reasonable opportunity to prevail on her claim, she must respond with specificity to VA's requests for additional information. Otherwise, her claim may be denied. In light of the above, the Board finds that the AOJ has at least substantially complied with the Court's June 2018 JMPR and the Board's December 2018 and October 2020 remand directives regarding records development. Stegall, supra. The Board further finds, however, that additional development is required as to the June 2018 JMPR regarding the appeal period prior to October 16, 2012. As an initial matter, the Board notes that prior to October 16, 2012, the Veteran's skin disability was rated under Diagnostic Codes (DCs) 7813 and 7813-7806. DC 7813 (relating to dermatophytosis) directs that the disability is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability). 38 C.F.R. § 4.118, DC 7813. The 8 characteristics of disfigurement under Note (1) to Diagnostic Code 7800, for purposes of rating under 38 C.F.R. § 4.118, are: scar is 5 or more inches (13 or more centimeters (cm.)) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118, DC 7804. The Veteran was first afforded a VA examination in connection with her claim in April 2007. The examiner noted that the Veteran had scattered lesions on her face which appeared to be fungal in nature, and also stated that they were on the hairline above the forehead. He diagnosed recurrent tinea capitis and stated that the disability involved less than 1 percent of the total body surface area and less than 5 percent of exposed area. He also noted that over the past year and currently the Veteran's treatment consisted of intermittent twice-daily use of ketoconazole cream, and that she had flare-ups about every three weeks lasting four to five days per episode. In February 2008, a VA treatment record noted that the Veteran had pale regions around the hairline and alopecia of the hair, but no redness of the scalp. The provider noted that she was using triamcinolone cream for her hair as well as Selsun Blue shampoo. In an April 2009 document, the Veteran alleged that that cream had caused her skin to bleach lighter around the hairline. A May 2008 VA treatment record indicated that she was treating her skin disability with Lidex sol and nizoral shampoo, but that they were not effective. The provider prescribed Diflucan, ketoconazole shampoo, minocycline, and metro (metronidazole) cream. A June 2008 VA treatment record indicated that the Veteran could not tolerate the minocycline pills and that she had finished the Diflucan course. The Veteran stated that she was frustrated because her rash was never as bad when she came in as it got at other times, and showed the provider pictures from four days earlier when she had had ring-like red lesions around the scalp and ears. On examination, the Veteran had plaques/papules present on her scalp, hair, and the bridge of her nose. The provider prescribed another course of Diflucan and continued the metro cream, but later noted that there was no improvement with Diflucan orally. She prescribed zinc pyrithione shampoo for 5 to 10 minutes and 3 to 7 times per week, ketoconazole cream and hydrocortisone as needed, and continued metro cream to be applied all over the face daily. The Veteran was afforded another VA examination in October 2008. The examiner noted that the Veteran had been treated with multiple creams and that she had used them multiple times a day on a daily basis, but that she could not recall the names, and that she was not treated with any pills (oral medications). The examiner also noted a crescent shaped lesion on the posterior neck on the left of the midline and close to the hairline, noting that it extended approximately 2 centimeters in length and approximately 3 millimeters in width. She further noted that in looking at the Veteran's hairline on the forehead there were some areas of hypopigmentation of the face, and that while it was not pronounced, there was evidence of some variegation of skin pigmentation along the hairline of the forehead. The examiner stated that no scarring or disfigurement was seen, and that the entire body surface involved was approximated at 1 percent and the exposed area would be less than 0.1 percent. A June 2009 VA treatment report noted that the Veteran's frontal scalp was "somewhat scarred." A December 2009 VA treatment record noted that she was seen for follow up of "scarring alopecia, rosacea, and seborrheic dermatitis," and the provider also noted that the Veteran believed her hair loss had gotten worse since using clobetasol. The provider noted that at that time, the Veteran used ketoconazole, metronidazole nitrate, and clobetasol for her skin rash. The Board also notes that evidence in the claims file dated on or subsequent to October 16, 2012 is also relevant to the appeal period prior to October 16, 2012 insofar as it relates to the question of scarring. For example, an October 2012 Skin Disease Disability Benefits Questionnaire (DBQ) noted that the Veteran's skin condition did not cause scarring or disfigurement of the face. An October 2014 VA examination indicated that the Veteran's skin disability did cause scarring or disfigurement of the face, but the examiner did not provide any further details as to that issue. A July 2015 VA examination indicated that the disability did not cause scarring or disfigurement of the head, face, or neck, and the October 2019 VA examination also indicated that the disability did not cause scarring or disfigurement of the head, face, or neck. In light of the foregoing, the Board finds that a remand for a VA examination and retrospective opinion regarding the appeal period prior to October 16, 2012 is warranted. The available evidence does not indicate whether the hypopigmentation around the Veteran's hairline involved an area exceeding six square inches so as to qualify as a characteristic of disfigurement. Regarding flare-ups, the April 2007 VA examiner stated that the Veteran had flare-ups about every three weeks lasting four to five days per episode, but he did not indicate whether the Veteran's skin condition involved at least 5 percent of the entire body or 5 percent of exposed areas during flare-ups, and the October 2008 VA examiner did not address flare-ups at all. Regarding whether any medications the Veteran used prior to October 16, 2012 could be considered systemic therapy, the Board finds that neither the April 2007 nor the October 2008 VA examination reports comply with the requirements of Burton v. Wilkie, 30 Vet. App. 286 (2018), which addresses considerations pertaining to the assignment of disability ratings for skin disabilities under the version of DC 7806 in effect for claims, as the Veteran's, that were pending prior to August 13, 2018. See also Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Warren v. McDonald, 28 Vet. App. 194 (2016). As noted above, evidence of record indicates that the Veteran used many medications prior to October 16, 2012, both topical and oral, to treat her skin disability. Finally, the Board notes that the record contains conflicting evidence as to whether the Veteran's skin disability causes scars or scarring. While the April 2007, October 2008, July 2015, and October 2019 VA examinations, as well as the October 2012 Skin Diseases DBQ, all indicated that the condition did not cause scarring or disfigurement, the October 2014 VA examination indicated that it did. Still further, the May 2009 and December 2009 VA treatment records indicated that the condition had caused scarring. Under the circumstances, a remand for a retrospective addendum opinion addressing the appeal period prior to October 16, 2012 is warranted. See Stegall, supra. Because of the difficulties inherent in providing a retrospective opinion, the Board finds that the Veteran should be afforded an in-person examination so that the examiner has the opportunity to obtain any history from the Veteran that might be helpful in formulating his or her opinions. This matter is REMANDED for the following action: 1. Arrange to schedule the Veteran for a VA examination with an appropriate VA clinician to assess the severity of her skin disability prior to October 16, 2012. The examiner should review the record and obtain any history from the Veteran that might be helpful in formulating his or her opinion. After the examiner has obtained any relevant history from the Veteran and reviewed the record, he or she should offer opinions as to the following: a) Whether, prior to October 16, 2012, any bleaching, hypopigmentation, or abnormal texture around the Veteran's hairline involved an area exceeding six square inches (39 square centimeters) so as to qualify as a characteristic of disfigurement. b) Whether, prior to October 16, 2012, the Veteran's skin disability involved at least 5 percent of the entire body or 5 percent of exposed areas during flare-ups, and if so, what approximate percentages were involved; how frequently flare-ups occurred; and how long the flare-ups generally lasted. c) Whether, prior to October 16, 2012, any medication the Veteran used to treat her condition, to include ketoconazole cream, triamcinolone cream, Diflucan, minocycline, hydrocortisone, metronidazole nitrate, and/or clobetasol operated by affecting the body as a whole such that it could properly be considered systemic therapy. d) Whether, prior to October 16, 2012, the Veteran's condition was manifested by any painful scars, and if so, how many painful scars were present. In formulating his or her opinions, the examiner should consider the April 2007 and October 2008 VA examination reports. As they relate to the question of whether the Veteran's skin condition has been manifested by painful scars, the examiner should also consider the October 2014, July 2015, and October 2019 VA examination reports, as well as the October 2012 Skin Diseases DBQ. If it is the examiner's opinion that the Veteran's skin disability does not cause scarring, he or she should explain why that is so, and specifically address the October 2014 VA examination and the June 2009 and December 2009 VA treatment records indicating that the Veteran's skin condition causes scarring. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion with respect to any of the above questions without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.