Citation Nr: 21040650 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-41 639 DATE: July 6, 2021 ORDER Entitlement to a 60 percent rating for a service-connected skin disability from September 18, 2009 to December 19, 2013, to include pseudofolliculitis barbae (PFB) and other skin disabilities, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDING OF FACT Treatment for the Veteran's service-connected skin disability from September 18, 2009 to December 19, 2013 involved the constant or near constant use of both topical corticosteroids and systemic therapy in the form of oral antihistamines. CONCLUSION OF LAW The criteria for entitlement to a 60 percent rating for a service-connected skin disability from September 18, 2009 to December 19, 2013, to include PFB and other skin disabilities, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2018) (prior to regulatory amendment of August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1965 to April 1969, July 1971 to December 1976, and February 1977 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) from a rating decisions of a Department of Veterans' Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the issue previously listed as entitlement to an initial compensable rating for a skin disability other than PFB has been recharacterized as entitlement to a rating in excess of 10 percent from September 18, 2009 to December 19, 2013 for a service connected skin disability in order to more accurately reflect the matter on appeal. The May 2016 rating decision currently on appeal granted service connection for a skin disability other than PFB and assigned an initial noncompensable rating pursuant to Diagnostic Code 7806, effective from September 18, 2009. The Veteran appealed. However, the Board notes that prior to this decision, the Veteran was already service connected for PFB, rated as 10 percent disabling pursuant to Diagnostic Code 7806. In a November 2015 rating decision, the RO increased the rating for the Veteran's service-connected PFB to 60 percent, the maximum schedular rating, from December 19, 2013. After the Veteran was granted service connection for a skin disability other than pseudofolliculitis barbae, the RO combined all of the Veteran's skin disabilities into a single service-connected skin disability rated under Diagnostic Code 7806. An August 2019 Board decision denied entitlement to a rating in excess of 60 percent for PFB from December 19, 2013. Although this decision was phrased as a rating for the Veteran's pseudofolliculitis barbae, because all of the Veteran's skin disabilities are a single entity for rating purposes, the effect of the Board decision was to deny a rating in excess of 60 percent for the Veteran's service-connected skin disability, to include both PFB and skin disabilities other than pseudofolliculitis barbae, from December 19, 2013. The Veteran did not appeal, and the denial of a rating in excess of 60 percent for the Veteran's service-connected skin disability after December 19, 2013 became final. However, the appeal period in this matter extends back to September 18, 2009, the date the Veteran submitted a claim for a skin disability other than PFB. Because the Veteran has been granted less than the maximum schedular rating prior to December 19, 2013, the issue of entitlement to a rating in excess of 10 percent from September 18, 2009 to December 19, 2013 for service-connected skin disability (pseudofolliculitis barbae and other skin disorders) remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (holding that claimants are presumed to seek the maximum available benefit for a disability). This issue, along with the issues of entitlement to service connection for sleep apnea and entitlement to TDIU, were remanded in August 2019 for additional development and have now been returned to the Board for readjudication. 1. Entitlement to a rating in excess of 10 percent for a service-connected skin disability from September 18, 2009 to December 19, 2013, to include pseudofolliculitis barbae and other skin disabilities. A July 1992 rating decision granted service connection for PFB at zero percent. A November 2015 rating decision granted a 60 percent rating for PFB from December 19, 2013 (date of claim for increase). An August 2019 Board decision denied a rating in excess of 60 percent from December 19, 2013. As indicated above, the Board remanded the rating prior to December 19, 2013. On September 18, 2009, VA received a claim for a skin condition other than PFB. A May 2016 Board decision granted that claim. Next, a May 2016 rating decision implemented the Board decision and assigned a zero percent rating from September 18, 2009 (date of claim). The Veteran appealed this decision. See NOD (August 2015) & Form 9 (August 2018). A supplemental statement of the case reflects that the Veteran's skin disability, rated as a single entity, was continued at a 60 percent rating. It did not address the remanded matter by the Board. However, as the record supports a full grant of the benefit sought on appeal, the Board finds that there is no prejudice to the Veteran in proceeding with an adjudication of this appeal. The question before the Board is whether entitlement to rating in excess of 10 percent for a service-connected skin disability for the period from September 18, 2009 to December 19, 2013 is warranted. The Board concludes, as explained below, that the evidence supports the assignment of a 60 percent rating for the entire appeal period based on treatment with constant or near constant use of both topical corticosteroids and systemic therapy in the form of oral antihistamines. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2018). After December 19, 2013, the Veteran's skin disability is rated as 60 percent disabling, the maximum schedular rating under Diagnostic Code 7806. Thus, at issue is the period from September 18, 2009 to December 18, 2013. The criteria for entitlement to a 60 percent rating for a service-connected skin disability from September 18, 2009 to December 19, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. The Veteran's pseudofolliculitis barbae, dermatitis, tinea versicolor, and seborrheic keratosis are rated under Diagnostic Code 7806, for dermatitis. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, these amendments do not apply here as it only applies to claims received on or after August 13, 2018. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). 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. Here, the evidence of record demonstrates that the Veteran's predominant disability is dermatitis or similar widespread involvement of the skin. The record is entirely negative for medical evidence of scarring related to the Veteran's disability, and he has never reported scarring due to the service-connected skin condition. The Board finds that the preponderance of the evidence supports the assignment of a 60 percent rating under the pre-August 13, 2018, regulations because the Veteran's dermatitis, tinea versicolor, and seborrheic keratosis required constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the period on appeal. Private medical record from May 2008 show that the Veteran was treated for erythematous papules and patches scattered around the neck, underarms, trunk, and groin area, and legs. No estimate of the exact area of skin covered was provided. He was prescribed Atarax, an antihistamine, and triamcinolone acetonide, a topical corticosteroid treatment. Private medical records from Family Dermatology reflect that in June 2009, the Veteran complained of a pruritic rash on the neck, arms, and abdomen. On examination, he had patchy erythema on the chest and brown keratotic plaques on the back. The percentage of skin affected was not noted. He was diagnosed with seborrheic keratosis and pruritic disorder NOS. He was prescribed Xyzal, an antihistamine, to be taken daily, and referred for allergy testing. In December 2010, the Veteran was afforded a VA examination of his skin disability. The Veteran described any itchy rash on his neck, shoulder, underarms, and groin area. Symptoms occur intermittently, as often as twice a month, with symptoms lasting eight to ten days. He estimated he had eight or nine attacks in the past year. He treats his condition with a topical corticosteroid and antihistamines such as Allegra and Xyzal taken every twelve hours. He also reported daily use as needed of a systemic corticosteroid Fexofenadine for approximately nineteen years. He did not use UVB, intensive light therapy, PUVA, or electron beam therapy for his condition. At the time of the examination, the Veteran had no active skin disease. He was diagnosed with atopic dermatitis (eczema). Records from Family Dermatology reflect treatment in April and May 2011 for tinea versicolor. In additional to a topical steroid cream and face wash, the Veteran was prescribed a six-day course of Nizoral tablets, an oral antifungal medication. In October 2011, the Veteran was seen for an itchy rash affecting the neck, arms, and groin area, diagnosed as atopic dermatitis, pruritic disorder NOS, and xerosis. He was treated for eczema, tinea cruris, and folliculitis in November 2011, with the Veteran requesting a refill of Atarax and Desonide. Eczematous patches on the bilateral ankles and the right antecubital fossa were noted, as well as multiple erythematous follicular papules and pustules on the beard area and annular scaly erythematous plaques extending onto the scrotum and inner thighs. Atarax was to be taken every six hours as needed. A February 2012 note reported that the Veteran was treating a flare-up of eczema on his neck with Vanos cream, a prescription corticosteroid. In August 2012, he was again treated for a flare-up of atopic dermatitis on the neck, chest, arms, and legs with Atarax, Vanos, Aquaphor, and Hylatopic. The Veteran was also prescribed a six-day course of Medrol, a systemic oral steroid. VA outpatient treatment records shows that in October 2011, August 2012, and September 2012, the Veteran was treated for complaints of a recurrent rash on his chest, back, upper arms, legs, and groin area, diagnosed as chronic dermatitis. An August 2019 VA examination again diagnosed the Veteran with dermatitis, tinea versicolor, and seborrheic keratosis, in addition to pseudofolliculitis barbae. The Veteran's tinea versicolor was characterized by mild hypopigmented patches mostly lower back and mild upper chest. His candida intertrigo/jock itch was characterized by hyperpigmented patches in the bilateral groin/outer scrotal region with mild erythema. His seborrheic dermatitis was characterized by hyperpigmented patches and plaques on the upper arms, chest and back. His pseudofolliculitis barbae was characterized by mild ingrown hair with mild hyperpigmentation on the bilateral lower cheeks and anterior neck region. He treated these conditions with constant/near-constant topical corticosteroids, constant/near-constant oral antihistamines, and a topical antifungal used at least six weeks but not constantly. The examiner estimated that the Veteran's pseudofolliculitis barbae, dermatitis, and tinea versicolor affected less than 5% of his total body area and less than 5% of his exposed body area. His seborrheic keratosis affected 5% to 20% of his total body area and less than 5% of his exposed body area. His skin conditions did not cause scarring. Based on all the above evidence, the Board finds that the evidence warrants the assignment of a 60 percent rating for the Veteran's service-connected skin disability under Diagnostic Code 7806 for the period from September 18, 2009 to December 19, 2013. VA and private treatment records and December May 2010 and August 2019 VA examinations establish that the Veteran's condition has been near constantly or constantly treated with oral antihistamines throughout the period on appeal, including Atarax, Xyzal, and Allegra. A maximum 60 percent evaluation is assigned for constant or near-constant systemic therapy. Although antihistamines are not included on the list of examples of systemic therapy contained in the diagnostic code, the code makes clear that the list is not exhaustive. The Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue. See Burton v. Wilkie, 30 Vet. App. 286 (2018). Oral antihistamines affect the entire body in their treatment of the condition at issue, not just the skin. Further, the Board notes that like corticosteroids or other immunosuppressive drug, antihistamines act on a body's immune system by suppressing histamines, a chemical created by the body's immune system in response to allergens. The Board notes that a 60 percent evaluation is the maximum schedular rating under Diagnostic Code 7806. The current 60 percent evaluation contemplates the Veteran's near continuous use of antihistamine medication. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The preponderance of the evidence weighs against finding that the Veteran's skin disability is characterized by systemic manifestations such as fever, weight loss, and hyperproteinemia. Accordingly, a total disability rating under Diagnostic Code 8717 is not warranted. Additionally, his skin disability does not cause scars of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or six or more characteristics of disfigurement. Accordingly, assignment of an 80 percent rating under Diagnostic Code 7800 is not appropriate. There is no other diagnostic code for rating skin disabilities under which a rating in excess of 60 percent can be assigned. In conclusion, the Board finds that the preponderance of the evidence supports assignment of a 60 percent rating from September 18, 2009 to December 19, 2013 for the Veteran's service-connected skin disability, to include pseudofolliculitis barbae and other skin disorders. This is the maximum schedular rating under Diagnostic Code 7806. Accordingly, the claim is granted. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. He has reported that the symptoms of sleep apnea started in service following his return from Vietnam in April 1969. Alternatively, he also contends that his sleep apnea was caused or aggravated by his service-connected psychiatric disability. The Veteran was afforded a VA examination in September 2019. The examiner opined that the Veteran's sleep apnea was less likely than not proximately caused by his service connected acquired psychiatric disability; however, the examiner failed to address the Veteran's contention that symptoms he experienced in service such as heavy snoring and poor sleep are evidence of the onset of sleep apnea. Additionally, the examiner did not clearly address whether the Veteran's sleep apnea was permanently aggravated by his acquired psychiatric disability. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, an addendum medical opinion is required to ensure that all the Veteran's theories of entitlement are addressed. 3. Entitlement to TDIU is remanded. Because the outcome of the remanded claim for entitlement to service connection for sleep apnea could affect the Veteran's claim for TDIU, that issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's obstructive sleep apnea at least as likely as not had onset in service. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptom consistent with his sleep apnea. Note: The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology for sleep apnea such as heavy snoring and problems sleeping. The clinician should opine on the following: (a.) Whether it is at least as likely as not that the Veteran's OSA had its onset in service. Consider whether his reported in-service symptoms (e.g. snoring and sleep problems) represented the onset of later diagnosed sleep apnea. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explain. (b.) Whether it is at least as likely as not that the Veteran's sleep apnea is (1) proximately due to his service-connected psychiatric disability or (2) was aggravated beyond its natural progression by his service-connected psychiatric disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 2. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.