Citation Nr: 21039855 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-09 291 DATE: July 1, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for psoriasis is denied. Entitlement to a disability rating in excess of 10 percent for viral hepatitis is denied. REMANDED Entitlement to service connection for right shoulder osteoarthritis, to include as secondary to service-connected right knee disability, is remanded. FINDINGS OF FACT 1. The evidence of record does not demonstrate the Veteran's psoriasis affects more than 40 percent of his total body area or his exposed areas; and the preponderance of the evidence is against a finding that the Veteran's psoriasis has been treated with systemic therapy. 2. Throughout the period on appeal, the weight of the evidence does not show the Veteran's viral hepatitis was manifested as symptoms of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 30 percent for psoriasis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7816. 2. The criteria for entitlement to a disability rating in excess of 10 percent for viral hepatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7345. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force on active duty from September 1974 to May 1977. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2018. A transcript of the hearing has been included with the record. However, this VLJ has since retired from the Board. In March 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Additionally, the letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board will assume the Veteran did not want another hearing and proceed accordingly. The record is absent of the Veteran's response regarding another hearing on this matter. The Board will consider the case on the evidence of record. The Board previously remanded the above issues in September 2018, to provide further development and VA examinations. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 30 percent for psoriasis During the pendency of the Veteran's appeal, in an April 2020 rating decision, the RO increased the Veteran's initial disability rating for his service-connected psoriasis to 30 percent for the entire period on appeal. As the full benefit was not granted, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran contends that his service-connected psoriasis is greater than his current disability rating. He specifically asserts that the symptoms of his service-connected psoriasis worsened due to medications taken to treat his diagnosis of hepatitis C. The Veteran's service-connected psoriasis is currently rated under 38 C.F.R. § 4.118, DC 7816. The VA rating criteria pertaining to skin disabilities were revised, effective August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. Under the rating criteria for DC 7816 in effect prior to August 13, 2018, a 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body is affected; or, when at least 5 percent, but less than 20 percent, of exposed areas are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body is affected; or, when 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted when more than 40 percent of the entire body is affected; or, when more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7816 (2017). With regard to the meaning of "systemic therapy" prior to the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355. Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Burton v. Wilkie, 30 Vet. App. 286, 289-93 (2018). Additionally, there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Id. at 289-93. Under the new criteria, for rating purposes, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118(a). Diagnostic Code 7816 continues to apply to psoriasis, but is now evaluated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent 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 less than 6 weeks over the past 12-month period. 38 C.F.R. § 4.118, DC 7816 A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 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, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id. 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id. Turning to the evidence of record, in a May 2014 VA examination, the Veteran reported that his psoriasis manifested as dry skin plaques with some thickened, flaking areas, particularly on his elbows, knees and lower legs. The Veteran reported flare-ups of his psoriasis associated with treatment for his hepatitis C. At the examination, the VA examiner noted the Veteran's diagnosis of psoriasis and reported the Veteran's history of treatments, including prescription steroid ointments. The examiner noted the Veteran treated his psoriasis with topical corticosteroids at a constant, or near constant rate, for the past 12 months. The VA examiner noted the Veteran's skin condition affected more than 5 percent, but less than 20 percent of the total body area, and less than 5 percent of the Veteran's exposed skin (face, neck, and hands). The examiner noted the Veteran's skin condition did not impact his ability to work. During the June 2018 Board hearing, the Veteran testified that he suffered from psoriasis located on his elbows and knees, with periodic outbreaks on and around his stomach. The Veteran also testified that he experienced flare-ups several times a year. The Veteran noted that he experienced painful psoriatic arthritis in his feet. The Veteran noted he treated his disability with prescribed topical creams, but he was unable to take medication due to his liver disease. The Veteran underwent a VA skin condition examination in August 2019. The VA examiner confirmed the Veteran's diagnosis of psoriasis. The Veteran described his psoriasis as peeling and itchy spots of scaly skin on his feet. He also noted stiffness in his feet and daily severe pain in his toes associated with his psoriasis. The Veteran reported that he no longer wore short pants due to the markings on his legs. The examination noted the Veteran's diagnosis of psoriasis and reported the Veteran's history of treatments, including prescription steroid ointments. The examiner noted the Veteran treated his psoriasis with topical corticosteroids and other medications twice daily at a constant, or near constant rate, for the past 12 months. The examination noted the Veteran did not use treatments or procedures other than topical medications for his skin condition in the previous 12 months. Upon examination, the clinician reported the Veteran's current psoriasis as a scaly rash with scales appearing white and flaky. The Veteran's skin has erythematous and hyper-pigmentation patches that Veteran noted to be itchy. The VA examiner noted the Veteran's skin condition affected 20 to 40 percent of the total body area and none of the Veteran's exposed skin (face, neck, and hands). The VA examiner noted the Veteran's psoriasis did not present any functional impact to the Veteran's ability to work. The Board finds the evidence of record does not warrant an initial disability rating in excess of 30 percent for the Veteran's psoriasis. At no point during the period on appeal did the Veteran's psoriasis manifest as characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected. 38 C.F.R. § 4.118, DC 7816. Additionally, the evidence does not show the Veteran required 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. Id. The Veteran's use of corticosteroid creams is consistent with topical, rather than systemic therapy. The evidence indicates that the Veteran has not used oral or other medications at any time during the appeal period to treat his psoriasis. Although the Veteran does use a topical corticosteroid, on a constant or near-constant basis, the evidence of record demonstrates that the Veteran was prescribed small amounts of the topical treatment, for particular surface areas of the affected skin, rather than for his entire body. The Board finds that the Veteran's use of a topical corticosteroid does not meet the definition of systemic therapy, as the treatment is localized to the areas affected with the skin condition. Additionally, there have been no reported side-effects of administering the medication. See Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). The Board is sympathetic that the Veteran's medication options may be limited due to his liver condition. However, even without oral or other internally administered medications, the Veteran's symptoms of psoriasis did not manifest as plaques covering more than 40 percent of his entire body required for a higher evaluation based on the General Formula or the previous rating criteria under 38 C.F.R. § 4.118, DC 7816. Accordingly, the Board finds that the probative evidence of record is against an initial disability rating in excess of 30 percent. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating more than that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to a disability rating in excess of 10 percent for viral hepatitis The Veteran's service-connected viral hepatitis is currently rated under 38 C.F.R. § 4.114, DC 7345, chronic liver disease without cirrhosis. Under DC 7345, a noncompensable rating is assigned for an asymptomatic chronic liver condition. A 10 percent rating requires intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period. 38 C.F.R. § 4.114, DC 7345. A 20 percent rating requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id. A 60 percent rating requires daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A 100 percent rating requires near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. For purposes of evaluating conditions under diagnostic code 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7345 Note (2). In May 2014 the RO provided the Veteran a VA examination to address his liver disability. The VA examiner confirmed the Veteran's diagnosis of hepatitis C. The Veteran reported a history of treatment for hepatitis, but noted he was not currently receiving treatment. Upon examination, the VA clinician reported the Veteran presented symptoms of intermittent fatigue attributable to chronic or infectious liver diseases. The VA examination noted the Veteran had not experienced any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) during the previous 12 months. Finally, the VA examiner noted the Veteran's liver condition did not impact his ability to work. Pursuant to the September 2018 Board remand, the Veteran underwent a VA examination addressing his service-connected viral hepatitis in August 2019. The VA examiner provided the diagnosis of autoimmune hepatitis, noted as being first diagnosed in 1990. The VA examination noted the Veteran complained of a history of symptoms, reported as nausea and tiredness. The Veteran reported a history of treatment for hepatitis, but noted he was not currently receiving treatment. Upon examination, the VA clinician reported the Veteran did not display current symptoms attributable to his chronic liver disease. The VA examination noted the Veteran had not experienced any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) during the previous 12 months. Additionally, the VA examiner noted no other pertinent physical finings, complications, conditions, signs, symptoms, or scars related to the Veteran's viral hepatitis. The Veteran testified before the Board in June 2018 regarding his service-connected hepatitis. The Veteran noted that his symptoms had worsened during the period on appeal requiring continued medication and treatment in May 2015. The Veteran's VA treatment records demonstrate the Veteran's history of hepatitis C with treatment. However, the records do not provide evidence of the Veteran's symptoms, including fatigue, occurring at daily intervals. Further, the VA treatment records do not demonstrate the Veteran experienced incapacitating episodes of symptoms at any point during the period on appeal. Following a review of the record, the Board finds that the Veteran's symptoms of hepatitis C do not reach the level of overall severity consistent with the requirements of an increased disability rating more than 10 percent. The applicable evidence of record shows the Veteran has not experienced daily symptoms of fatigue, malaise, and anorexia (with or without weight loss or hepatomegaly), requiring dietary restriction or continuous medication. Additionally, the evidence of record does not show the Veteran experienced incapacitating episodes of symptoms related to his service-connected viral hepatitis, as defined in 38 C.F.R. § 4.114, DC 7345. Thus, evidence of increased hepatitis symptomatology has not been established, either through medical or lay evidence. Accordingly, the claim for an increased disability rating for is denied, and the benefit of the doubt rule does not apply. See Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Entitlement to service connection for right shoulder osteoarthritis, to include as secondary to service-connected right knee disability, is remanded. The Veteran contends that his right shoulder osteoarthritis is the result of active duty service. Additionally, he asserts that his right shoulder disability is secondary to his service-connected right knee disability. Notably, the Veteran reports that his condition is the result of falls due to his right knee constantly giving out. Here, remand is required to provide the Veteran an adequate medical opinion addressing his right shoulder disability as secondary to his service-connected conditions, to include his right knee disability and cervical spine osteoarthritis. The Veteran underwent a VA examination to address his shoulder condition in August 2019. The VA examination failed to provide an adequate opinion addressing whether the Veteran's current diagnosis of right shoulder degenerative joint disease (DJD) was the result of or aggravated by his service-connected spine and knee conditions. See El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2012). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A mere conclusory medical opinion is insufficient. An opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Remand is required to obtain a new VA medical opinion that provides adequate reasoning and support as to the secondary etiological relationship between the Veteran's service-connected disabilities, to include the cervical spine disability and right knee osteoarthritis, and his claimed right shoulder condition. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the Veteran's claimed right shoulder disability. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, the examiner must opine as to: a. Whether it is at least as likely as not (50 percent probability or more) the Veteran's right shoulder disability, to include degenerative joint disease, was proximately caused by, or the result of, his service-connected cervical spine disability and right knee osteoarthritis. b. Whether it is at least as likely as not (50 percent probability or more) the Veteran's right shoulder disability, to include degenerative joint disease, was aggravated by, his service-connected cervical spine disability and right knee osteoarthritis. For the purposes of this examination, the VA examiner must discuss the Veteran's right shoulder disability as it relates to his claims that he regularly falls on his right side due to his right knee giving way. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.