Citation Nr: 21032129 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-25 150 DATE: May 25, 2021 ORDER From July 20, 2017, entitlement to a 60 percent rating for tinea versicolor, but no higher, is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected generalized anxiety disorder and/or migraine headaches is remanded. Entitlement to service connection for tinnitus, to include as secondary to service-connected migraine headaches and/or the service-connected bilateral hearing loss is remanded. Entitlement to service connection for heart disorder, to include as secondary to generalized anxiety disorder is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected generalized anxiety disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to July 20, 2017, to include extraschedular basis is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's tinea versicolor required constant or near constant systemic therapy during the period on appeal. CONCLUSION OF LAW From July 20, 2017, the criteria for entitlement to a 60 percent rating for tinea versicolor, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military service from August 1951 to July 1955. In October 2019 and August 2020, the Board of Veterans' Appeals (Board) remanded these issues to the Agency of Original Jurisdiction (AOJ) for further development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran's tinea versicolor has been assigned staged ratings pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806. 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. For cases filed before August 13, 2018, DC 7806 warrants a 10 percent rating when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed areas; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of fewer than six weeks during the past 12-month period. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is the highest rating available under DC 7806. A 60 percent rating is warranted when dermatitis or eczema covers more than 40 percent of the entire body, more than 40 percent of the exposed areas or control of dermatitis or eczema requires near-constant or constant systemic therapy such as corticosteroids or other immunosuppressive drugs over the past 12-month period. 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. Under the new regulations, effective August 13, 2018, tinea versicolor is to be evaluated under the General Rating Formula for the Skin. See 38 C.F.R. § 4.118, DC 7806. Under this General Rating Formula, a 0 percent rating is assigned when there is no more than topical therapy required over the past 12-month period and 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 30 percent rating is assigned for 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, (psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Under the new criteria, systemic therapy is defined as a treatment administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118. 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). From July 20, 2017, entitlement to a 60 percent rating for tinea versicolor, but no higher, is granted. By way of background, the Veteran filed a claim for increase for his service-connected tinea versicolor on July 20, 2017. In an August 2017 rating decision, the AOJ increased the rating assigned for the Veteran's tinea versicolor, back and arms, to 10 percent disabling, effective July 20, 2017. The Veteran disagreed, and initiated this appeal. During the pendency of the appeal, in a March 2021 rating decision, the AOJ increased the rating assigned for tinea versicolor to 60 percent disabling, effective February 24, 2021, the date upon which a VA examination had shown the requirements for this higher rating were met under the applicable rating criteria. As such, the rating for the Veteran's tinea versicolor has been staged with a 10 percent rating in effect until February 24, 2021, when the rating increased to 60 percent. 60 percent is the highest possible schedular rating under both the former and current versions of 38 C.F.R. § 4.118, DC 7806. Here, the Veteran underwent a VA skin examination in August 2017 addressing his service-connected tinea versicolor on his back and arms. The examiner noted that the Veteran was provided with a dermatologic topical agent for this condition, but reported that he had no relief. He also had keloid scarring from and CABG incision (2001) and gallbladder (2008). None of the skin conditions caused scarring or disfigurement of the head, face, or neck. He did not have any benign or malignant skin neoplasms. He did not have any systemic manifestations due to any skin diseases. The examiner indicated that the Veteran had not been treated with oral or topical medications in the past 12 months. Regarding the tinea versicolor, the examiner reported the total body area affected from 5% to less than 20% and the exposed area from 5% to less than 20%. The examiner indicated that the combined percentage affecting the total body, if multiple conditions were found as 15% and the exposed areas as 5%. The examiner described the Veteran's tinea versicolor as flat, hypo-pigmented diffuse lesions on the bilateral arms and back. The examiner added that there was a worsening of the Veteran's symptoms. The symptoms did not cause any functional impact. Contrary to the report of the August 2017 examiner, VA treatment records reflect use of more than one topical cream to treat his tinea versicolor, to include a topical steroid. See a July 18, 2017 Psychiatry Nurse Practitioner Note. In an October 2019 remand, the Board observed that the August 2017 examiner indicated that the Veteran had not been treated with oral or topical medications in the past 12 months. However, it was clear from a review of the medical records in the claims file that throughout the appeal period, the Veteran was prescribed topical creams, to include a topical steroid, for his service-connected disability. A new VA examination and opinion was requested that took into account the Veteran's prescribed medications and determines whether they constituted systemic therapy. The Veteran was afforded another VA examination regarding his tinea versicolor in February 2020. The Veteran reported that the skin condition used to be located from his neck down, but now it was just on his forearms. He used more topical products than he used to and applied it to his forearms and abdomen. The examiner indicated that the Veteran had been treated with medication in the past 12 months for a skin condition with corticosteroids or other immunosuppressive medications. The examiner checked the boxes indicating that the medications were administered topically on a constant/near-constant basis. He did not have any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. The total body area was less than 5 percent and there was no exposed area. The appearance was small 4-6 mm round non-raised areas of white skin with 10 spots on the right dorsal forearm and 2 spots on the left dorsal forearm. The skin was intact with no signs of scratching. There were zero spots on the abdomen. In August 2020, the Board remanded the claim again noting that at the February 2020 VA examination, the VA examiner found that the Veteran used a constant/near-constant corticosteroid for the treatment of his tinea versicolor. Although the examiner checked the "topical" box for the corticosteroid, the examiner provided no rationale for why this medication would or would not be considered "systemic." Given the governing case law described above, another remand was required to obtain a VA addendum opinion. On February 2021 skin examination, the examiner noted that the Veteran had been treated with medication in the past 12 months for a skin condition with corticosteroids or other immunosuppressive medications. The examiner checked the boxes indicating that the medications were administered topically on a constant/near-constant basis. The total body area was less than 5 percent and there was no exposed area. There was tinea versicolor on his forearms that were small approximately 5 mm non raised areas of hypopigmented skin. It was clean without signs of infections. There were 10 spots on his right dorsal forearm and 2 spots on his left dorsal forearm. There was no scarring or any other pertinent physical findings, complications, signs and/or symptoms related to the skin condition. In a March 2021 opinion, the examiner highlighted two studies generally addressing whether topical steroids have systemic effects, and concluded based on this research there were conflicting theories on the matter. The examiner did note that in the medical community it was generally accepted that consistent topical steroid use would not be defined as systemic treatment; however, as discussed above, on a case by case basis, some topical treatment can in fact be considered systemic for the purposes of rating the Veteran's disability utilizing the former rating criteria under Diagnostic Code 7806. After considering the analysis and medical opinion of the February 2021 VA examiner, the AOJ awarded an increased rating for the Veteran's tinea versicolor to a maximum 60 percent based on the use of constant systemic corticosteroid medication. The AOJ presumably based this determination on application of the former rating criteria because such a rating would be prohibited (based on topical medication alone) under the revised regulations, as outlined above. Significant to this case, the AOJ made the effective date of the increase February 24, 2021, which is the date of the examination. Given that the Veteran has been using the same steroid medication throughout the appeal period under review, and after considering the medical opinions and assessments provided throughout, to include the assessment of the February 2021 examiner, the Board will resolve all doubt in favor of the Veteran and assign 60 percent rating, under the former diagnostic criteria, effective the date of the Veteran's July 2017 claim for increase. As noted above, a 60 percent rating is the highest rating permissible under the former and current rating schedule for tinea versicolor. There is no suggestion in the evidence of record that the Veteran's symptoms are not contemplated by the schedule, or cause frequent hospitalization or marked interference with employment. Thus referral of the Veteran's appeal for an extraschedular rating is not warranted. In sum, an increased rating from 10 to 60 percent for tinea versicolor, but no higher, is granted, effective July 20, 2017. An earlier effective date for the award of increase during the one-year look back period is not warranted, as it is not factually ascertainable during that time period that the Veteran's tinea versicolor increased in severity specifically during that year. REASONS FOR REMAND 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected generalized anxiety disorder and/or migraine headaches is remanded. The Board remanded the Veteran's service-connection claim for GERD to obtain adequate opinions as to its etiology. In particular, an examiner in February 2021 was asked to opine as to whether the Veteran's service-connected anxiety disorder and/or headache disorder to specifically include the medications taken for both at least as likely as not caused or aggravated the Veteran's GERD. The examiner make clear that there is no indication the actual diagnoses would be related, but in concluding that the medications taken for both disabilities would not cause or aggravate GERD, the examiner provided inadequate supporting rationale. On remand, an addendum opinion should be obtained. 2. Entitlement to service connection for tinnitus, to include as secondary to service-connected migraine headaches and/or the service-connected bilateral hearing loss is remanded. Regarding whether or not the Veteran has tinnitus that is caused or aggravated by her migraine headaches, the February 2021 examiner stated that an expert in neurology would be best to address this medical opinion, as migraine headaches are out of the scope of practice of audiologists. Therefore, a new VA opinion from a neurologist is necessary. The reviewing clinician should address the Veteran's contentions during the examination indicating that he had "maybe weekly" episodes of tinnitus that began when he had a headache and was relieved after taking acetaminophen. 3. Entitlement to service connection for heart disorder, to include as secondary to generalized anxiety disorder is remanded. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected generalized anxiety disorder is remanded. In August 2020, the Board directed the VA examiner to opine whether the Veteran's current heart disorder and hypertension are at least as likely as not (1) proximately due to the service-connected generalized anxiety disorder, or (2) aggravated by the service-connected generalized anxiety disorder. Several opinions were provided in February 2021. The examiner opined that there were no findings of in-service aggravation, but did not address whether or not the Veteran's hypertension and heart disorder were aggravated by his generalized anxiety disorder. The opinions obtained on remand do not comply with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Addendums are needed. Also, as the examiner indicated that the hypertension was a cause of coronary artery disease, these issues are intertwined and must be remanded and readjudicated together. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to July 20, 2017 is remanded. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App./ 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. In this case, the August 2020 Board remand directed the AOJ to refer the Veteran's claim for a TDIU prior to July 20, 2017, to VA's Director of Compensation Service for extraschedular consideration. The Board notes that the Veteran's TDIU claim was received on July 20, 2017, but an earlier date may be assigned within one year prior to that claim if it is factually ascertainable eligibility was established during that year. In a March 2021 supplemental statement of the case, the Agency of Original Jurisdiction (AOJ) indicated referral to the Director of Compensation Service was not warranted because there was no evidence of marked interference with employment or frequent periods of hospitalization prior to July 20, 2017. Not only did the AOJ fail to comply with the Board's remand directive, but it appears that the AOJ also conflated the standards governing extraschedular referral under 38 C.F.R. § 3.321(b) (pertaining to ratings for individual disabilities) with 4.16(b) (pertaining to an extraschedular TDIU). Therefore, the Board will remand the claim for entitlement to a TDIU on an extraschedular basis prior to July 20, 2017, for referral to the Director of Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b), and to ensure compliance with its prior remand instructions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing the etiology of the Veteran's GERD. Specifically, after review of the record, the reviewing clinician is asked to respond to the following: a) Please review the Veteran's medication lists, and identify the medications the Veteran has been taking, if any, for his service-connected anxiety and headaches. b) Is it at least as likely as not (50 percent or greater probability) that the medications taken for service-connected anxiety and/or headaches have caused or aggravated the Veteran's GERD? All opinions should be supported by a medical explanation or rationale. If an in-person or virtual examination or interview is deemed necessary by the reviewing clinician to provide informed responses, such should be scheduled. 2. Obtain an addendum opinion by a neurologist, if possible, to determine the nature and etiology of the Veteran's tinnitus. The entire file must be made available to the clinician. If an opinion from a neurologist is not possible, please explain why this is so, and obtain an opinion from another clinician who is authorized to perform assessments as to the severity of headache disabilities. The clinician is asked to opine as to whether the Veteran's current tinnitus is at least as likely as not (1) caused by his service-connected migraine headaches, or (2) aggravated by his service-connected migraine headaches. The clinician should address the Veteran's contentions during a prior examination indicating that he had "maybe weekly" episodes of tinnitus that began when he had a headache and was relieved after taking acetaminophen. The clinician must provide a medical rationale or explanation in support of any opinion provided. If an in-person or virtual examination or interview is deemed necessary by the reviewing clinician to provide informed responses, such should be scheduled. 3. Obtain an addendum opinion from an appropriate clinician addressing whether the Veteran's currently diagnosed heart disorder is at least as likely (1) caused by his service-connected generalized anxiety disorder, or (2) aggravated by his service-connected generalized anxiety disorder. The entire file must be made available to the reviewing clinician. The clinician must provide a supporting medical rationale or explanation for any opinion provided. If an in-person or virtual examination or interview is deemed necessary by the reviewing clinician to provide informed responses, such should be scheduled. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's currently diagnosed hypertension is at least as likely (1) caused by his service-connected generalized anxiety disorder, or (2) aggravated by his service-connected generalized anxiety disorder. The entire file must be made available to the reviewing clinician. The clinician must provide a supporting medical rationale or explanation for any opinion provided. If an in-person or virtual examination or interview is deemed necessary by the reviewing clinician to provide informed responses, such should be scheduled. 4. Refer the Veteran's claim for a TDIU prior to July 20, 2017, to VA's Director of Compensation Service for extraschedular consideration. 5. Then readjudicate all issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L.Crohe, 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.