Citation Nr: 22014221 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-01 808 DATE: March 11, 2022 ORDER Entitlement to a compensable disability rating for service-connected dermatitis prior to February 12, 2016, is denied. Entitlement to a disability rating of 10 percent service-connected dermatitis from February 12, 2016 is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. Entitlement to a compensable disability rating for traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to February 12, 2016, the Veteran's dermatitis was manifested by less than 5 percent of total body affected, and with less than 5 percent of exposed areas. 2. From February 12, 2016, to September 14, 2021, the Veteran's dermatitis was treated with 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. 3. After September 14, 2021, the Veteran's dermatitis approximated at least 5 percent, but less than 20 percent, of the entire body. CONCLUSIONS OF LAW 1. Prior to February 12, 2016, the criteria for a compensable disability rating for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. On and after February 12, 2016, the criteria for a rating of 10 percent for dermatitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 until January 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. In February 2021, the Veteran participated in a hearing with the undersigned; a transcript is associated with the claims file. In July 2021, the Board found that the issue of TDIU had been raised by the record (due to migraines and seizures), Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded these issues for further development. The Board notes that it additionally remanded the issue of entitlement to service connection for seizures; while on remand, the AOJ granted service connection for this disability. As this constitutes a full grant of benefits, that issue is no longer before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). The Veteran's dermatitis has been assigned a noncompensable rating pursuant to Diagnostic Code 7806. Pursuant to 38 C.F.R. § 4.71a, dermatitis can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability (emphasis added). The Veteran's left ear scar associated with his dermatitis is rated at 10 percent under Diagnostic Code 7800. The Board notes, however, that this rating is not before the Board on appeal. Additionally, the Board finds that these other Diagnostic Codes are inapplicable here. Diagnostic Code 7801 governs scars that are deep and nonlinear. Diagnostic Code 7802 governs scars that are superficial and nonlinear and affect an area or areas of at least 144 square inches. Diagnostic Code 7804 governs scars that are unstable or painful. Diagnostic Code 7805 provides that other scars and effects of scars evaluated under the above Diagnostic Codes require the evaluation of any disabling effect(s) not otherwise considered. Here, however, as the evidence establishes that there is no scarring or disfigurement present (aside from the left ear scar not currently before the Board), and no disabling effects have been demonstrated, the Board finds that the Veteran's skin disorder is appropriately rated as dermatitis under Diagnostic Code 7806. Under the rating criteria in effect when the Veteran filed his claim, Diagnostic Code 7806, regarding dermatitis or eczema, established that a 10 percent rating requires that 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 be 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 requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected; or 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 requires that more than 40 percent of the entire body or more than percent of exposed areas is affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA's policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). As the Veteran's application was received by VA before the August 2018 effective date for the revised skin regulations and remained pending as of that date, the Board will consider its application to the Veteran's claim for increased rating. Under current Diagnostic Code 7806 regarding dermatitis or eczema under the revised Schedule for Rating Skin Disabilities, a 10 percent rating requires at least one of the following: 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 ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating requires at least one of the following: characteristic lesions involving at least 5 percent but less than 20 percent of the entire body 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 requires at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 50 percent of exposed areas affected; or constant or near-constant systemic therapy involving, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id. The Veteran participated in a VA examination for his dermatitis in August 2015. Therein, the Veteran reported that the rash behind his left ear "weeps seasonally (hot weather), and becomes itchy and peels." He additionally stated that his rashes are "present constantly, are itchy and the hair grows under the skin" and that the rash behind his ear "recurs intermittently." The examiner indicated that the Veteran did not have any benign or malignant skin neoplasms; nor did the Veteran have any systemic manifestations due to any skin disease such as fever, weight loss, or hypoproteinemia associated with skin conditions. The examiner found that the Veteran had not been treated with topical medications in the past twelve months. Further, the Veteran has not had any debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner observed that the Veteran's skin disorder affected less than 5 percent of the total body area and covered no exposed areas. The Veteran participated in another VA examination in June 2017. The VA examiner stated that the Veteran's dermatitis has remained the same. The Veteran reported on-off occurrence of folliculitis bumps in the pubic area. The examiner noted that he was not any medications for this dermatitis and that his left ear scar was silent with no reports of recent rash or itching. The examiner indicated that the Veteran did not have any benign or malignant skin neoplasms; nor did the Veteran have any systemic manifestations due to any skin disease such as fever, weight loss, or hypoproteinemia associated with skin conditions. Further, the Veteran has not had any debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner observed that the Veteran's skin disorder affected less than 5 percent of the total body area and covered no exposed areas. In a November 2017 addendum, the VA examiner stated that the Veteran was treated by a dermatology clinic in February 2016 and was prescribed an antibiotic but that he was no longer on any medication. The examiner stated that the Veteran had been treated with Keflex "at various times," to include in September 2017 for about 10 days. A further review of the Veteran's VA treatment records also show that he was treated with Keflex in March 2018 and April 2019 as well. As referenced in the Board's remand, the Veteran testified that his dermatitis spread across his chest and underneath his arms. The Board therefore remanded the issue for a contemporary VA examination given this competent evidence of a worsening disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran participated in another VA examination in September 2021. Therein, the examiner stated that the Veteran's rash has gotten worse over time, to include affecting his arm pits, and that he has problems with intimacy due to the rash in his groin. The examiner indicated that the Veteran did not have any benign or malignant skin neoplasms; nor did the Veteran have any systemic manifestations due to any skin disease such as fever, weight loss, or hypoproteinemia associated with skin conditions. The examiner found that the Veteran had not been treated with topical medications in the past twelve months. Further, the Veteran has not had any debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner observed that the Veteran's skin disorder was less than 5 percent of the total body area and less than 5 percent of exposed areas. Prior to February 12, 2016 After a review of the record, the Board finds that prior to February 12, 2016, the Veteran's dermatitis is not entitled to a compensable disability rating. In order to warrant a 10 percent rating under prior Diagnostic Code 7806, the Veteran's dermatitis would have to be manifested by 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 be 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. Here, the medical evidence shows that the Veteran's dermatitis is less than 5 percent of the total body area and none of the exposed areas. Furthermore, while the Veteran was noted to have been treated with antibiotics, this treatment did not occur until February 12, 2016. Accordingly, a compensable rating is not warranted under prior Diagnostic Code 7806. For this period, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the persuasive evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). From February 12, 2016 to September 14, 2021 After a review of the record, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's dermatitis warrants a 10 percent disability rating from February 12, 2016 to September 14, 2021. As the November 2017 VA addendum opinion noted, the Veteran was first prescribed an antibiotic for his dermatitis on February 12, 2016. The medical evidence of record also shows that he was treated with Keflex "at various times," to include October 2016, September 2017, March 2018, and April 2019. Resolving all doubt in the Veteran's favor, this evidence supports a 10 percent rating from February 12, 2016 to September 14, 2021. However, a rating in excess of 10 percent is not warranted under either Diagnostic Code. In order to warrant a higher rating under prior Diagnostic Code 7806, the Veteran's skin disorder would have to be manifested by 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. Here, however, the medical evidence show that the Veteran's skin disorder covers no more than 5 percent of the total body area and zero percent of the exposed area. Additionally, while this evidence shows that the Veteran uses antibiotics to treat his dermatitis, no systemic treatment has been required. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's dermatitis under prior Diagnostic Code 7806. Under the 2018 revised Schedule for Rating Skin Disabilities, the Board similarly finds that a rating in excess of 10 percent for the skin disorder is not warranted. In order to warrant a higher rating, the Veteran's skin disorder would have to be manifested by characteristic lesions involving at least 20 percent but less than 40 percent of the entire body or exposed area 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. Here, as stated above, the medical evidence shows that the Veteran's dermatitis covers less than 5 percent of total body area and zero percent of the exposed area. Additionally, no systemic therapy has been required. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's skin disorder under the 2018 revised Schedule for Rating Skin Disabilities. The Board has applied the benefit of the doubt doctrine in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). After September 14, 2021 After a review of the record, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's dermatitis also warrants a 10 percent disability rating after September 14, 2021. While the September 2021 VA examiner opined that the Veteran was no longer on any medications to treat his dermatitis, his dermatitis worsened, to include spreading to his arm pits and groin area, and affects his intimacy. Resolving all doubt in the Veteran's favor, the Board finds that his dermatitis affects about 5 percent of his total body area and exposed area, thereby satisfying the 10 percent criteria. However, a rating in excess of 10 percent is not warranted under either Diagnostic Code. In order to warrant a higher rating under prior Diagnostic Code 7806, the Veteran's skin disorder would have to be manifested by 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. Here, however, the medical evidence shows, at-best, that the Veteran's skin disorder covers no more than 5 percent of the total body area and 5 percent of the exposed area. Additionally, the September 2021 VA examiner stated that the Veteran is no longer on any medications used to treat his dermatitis. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's dermatitis under prior Diagnostic Code 7806. Under the 2018 revised Schedule for Rating Skin Disabilities, the Board similarly finds that a rating in excess of 10 percent for the skin disorder is not warranted. In order to warrant a higher rating, the Veteran's skin disorder would have to be manifested by characteristic lesions involving at least 20 percent but less than 40 percent of the entire body or exposed area 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. Here, as stated above, the medical evidence shows that the Veteran's dermatitis covers about 5 percent of total body area and zero percent of the exposed area. Additionally, no systemic therapy has been required. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's skin disorder under the 2018 revised Schedule for Rating Skin Disabilities. The Board has applied the benefit of the doubt doctrine in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a compensable disability rating for TBI is remanded. 2. Entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. Unfortunately, remand is necessary to obtain another VA examination that complies with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran's TBI, the Board directed the addendum VA examiner to consider the Veteran's February 2021 testimony that he has significant memory issues, prostrating headaches, and trouble understanding complex procedures. The August 2021 VA examiner indicated that the Veteran's judgment was normal, and failed to incorporate any of the Veteran's February 2021 testimony in his rationale. Remand is therefore necessary for these lay statements to be considered. Regarding the Veteran's back disability, the Board directed the addendum VA examiner to specifically address the Veteran's February 2021 testimony that he has back spasms about 1 to 3 times per month lasting 45 minutes to an hour each and "can't really bend over [or] move too much" when it occurs. In one section of the September 2021 VA examination, the examiner described the Veteran's muscle spasms as "occasional. . . about weekly, pain will last longer after increased activities," but otherwise stated that the Veteran did not have any flare-ups and failed to estimate the Veteran's loss of range of motion during such. Remand is therefore necessary to determine the loss of range of motion during weekly flare-ups/back spasms. 3. Entitlement to TDIU is remanded. The claim for TDIU is inextricably intertwined with the increased rating claims on appeal. See Parker v. Brown,7 Vet. App. 116 (1994); Harris v. Derwinski,1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature, frequency and severity of his residuals of a TBI. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. Any appropriate diagnostic testing should be conducted and noted in the report. The examiner should identify all related TBI symptoms and functional impairment. The VA examiner must specifically comment on the Veteran's February 2021 testimony that he has significant memory issues, prostrating headaches, and trouble understanding complex procedures. 2. Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected lumbosacral strain. Range of motion measurements of the Veteran's back must be included in both active and passive motion and in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner must also assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. The examiner must also discuss whether the Veteran experiences functional loss consistent with that contemplated by ankylosis, including during flare-ups. If it is not possible to provide any of the requested information, the examiner must thoroughly explain why this is so. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale indicating that the Veteran is not having a flare-up at the time of the examination, without more explanation, will not be deemed adequate. The VA examiner must specifically comment on the Veteran's February 2021 testimony that he has back spasms about 1 to 3 times per month lasting 45 minutes to an hour each and "can't really bend over [or] move too much" when it occurs. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.