Citation Nr: 22017789 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-37 891 DATE: March 26, 2022 ORDER Since August 10, 2012, entitlement to a rating of 30 percent, but no more, for a skin disability, to include dermatophytosis, is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include PTSD, is remanded. FINDING OF FACT The Veteran's skin disability, including dermatophytosis, is manifested by lesions affecting more than 20 percent, but less than 40 percent, of his entire body. CONCLUSION OF LAW The criteria for an increased 30 percent rating, but no higher, for dermaphytosis, claimed as a skin condition, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1951 to May 1954 and December 1954 to March 1956, with subsequent service in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). These matters were remanded by the Board in July 2018 for additional development, including VA examinations, stressor verification, and obtaining VA treatment records. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As explained in more detail below, the failure to obtain complete National Guard records and complete VA records, as well as private treatment records relevant to the Veteran's claim for service connection for an acquired psychiatric condition, requires a remand. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran has not alleged unemployability based on his service-connected disabilities. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased rating. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already 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). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the weight of the evidence is persuasively against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Claims pending prior to the effective date will be considered under both the old and new schedules, and whatever schedule is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new schedule will be applied. Because the Veteran's claim was filed on July 2, 2013, the Board will consider both schedules. The Veteran's skin conditions have not caused scarring or disfigurement of the head, face, or neck. Therefore, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 are inapplicable in this case. Diagnostic Code 7813 provides compensation for service-connected dermatophytosis. 38 C.F.R. § 4.118. Prior to August 13, 2018, regulations direct that this disability be rated under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7813. Prior to August 13, 2018, a noncompensable rating is provided where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating is provided where: 1) at least five percent but less than 20 percent of the entire body or between five and 40 percent of exposed areas are affected; or 2) intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. A 30 percent rating is provided where: 1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is provided where: 1) more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or 2) constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. Effective August 13, 2018, dermatitis or eczema are evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. A noncompensable rating is provided for no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. Id. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, 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. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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. 38 C.F.R. § 4.118. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. 38 C.F.R. § 4.118. 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. The Veteran contends that he is entitled to a compensable rating for his dermatophytosis because his symptoms are more severe than those contemplated by the current noncompensable rating. Specifically, the Veteran's prior attorney contends that the Veteran is entitled to a 10 percent rating from August 2012 to August 2013, and a 60 percent evaluation from August 2013 to May 2014, as well as an extraschedular rating for symptoms of burning and itching that are not contemplated by the diagnostic code. The Veteran's prior attorney did not argue for a specific rating after May 2014. At the outset, the Board notes that the record contains two VA examinations, from March 2014 and October 2021. However, these examinations and opinions concerning the use and nature of the therapies administered for the Veteran's eczema are not adequate because they do not comply with Burton, 30 Vet. App. 286. Therefore, the Board may not rely on the conclusions characterizing the type of eczema therapies for the Veteran's skin condition to deny his claim. Moreover, the Veteran has reported that his skin disability flares up periodically, especially in response sun exposure, and that flare ups last approximately two weeks. However, there is no indication that any of the VA examinations were conducted during a flare up of the Veteran's skin disability. Accordingly, the Board cannot rely on the conclusions regarding the percentage of the Veteran's body area affected by the skin conditions to deny his claim. In addition, the Board is aware that there are VA treatment records, specifically telemedicine photos and imaging, regarding the Veteran's skin disability which have not been associated with the claims file. These records could be favorable to the Veteran. However, the extant records contain the Veteran's contemporaneous statements to treatment providers and clinical descriptions of the manifestations of his skin disability. Resolving all doubt in favor of the Veteran, the Board finds that using these clinical observations and descriptions of these images will not prejudice the Veteran. VA treatment records from August 10, 2012, show that the Veteran sought treatment for an itch rash affecting both of his arms for several weeks. The treatment provider noted an oval shaped red rash on both arms. The notes from this visit are incomplete. In August 2013, the Veteran complained of itchy and scaly lesions all over his torso and extremities. Tele-imaging was ordered for his back, torso, arms, genitalia and physical examination showed hypopigmented, annular and scaly patches over his trunk and upper extremities. He was prescribed a course of Diflucan and prescribed a topical ointment. The Veteran was instructed to return if his symptoms did not improve. At the March 2014 VA examination, the Veteran reported intermitted flare-ups of his skin condition of red skin lesions on his back, arms, and legs, caused by prolonged direct sun exposure. On examination, which was not conducted during a flare up, the examiner noted an isolated plaque on both the Veteran's thighs, red plaques in the Veteran's inner thighs and inguinal folds with sharply marginated margins. The examiner estimated that the plaques affected less than 5 percent of the Veteran's body, and noted that he had required 6 weeks or more, but not constant use, of topical medication in the past 12 months. The examiner did not acknowledge treatment records showing that the Veteran had been prescribed an oral anti-fungal medication in the past month. The record documents little ongoing treatment of the Veteran's skin condition. At regular primary care follow up appointments in 2014, 2015 and 2016, treatment providers noted no lesions or discoloration on the Veteran's skin. In November 2017, the Veteran sought treatment for skin fungus symptoms that had been present for the past two weeks. The provider noted redness in the inguinal area and prescribed a topical medication. Providers noted rashes in the Veteran's inguinal area again in June 2018. In July 2018, physical examination revealed rash and redness on the Veteran's right knee, his sacral area and between his thighs. A physical examination later that same month documented no skin abnormalities. At a primary care follow up appointment in April 2019, physical examination showed no rashes, lesions, or discoloration on the Veteran's skin. His active medications at the time included a topical anti-fungal cream that he was instructed to use daily on affected areas. In March 2017, the Veteran's attorney submitted an affidavit from the Veteran stating that his skin condition affects his entire body, causing constant itching and scratching, burning, dry skin and dry spots. The Veteran stated that he avoided going out in public because he was constantly scratching himself, which caused him embarrassment. The Board acknowledges that Veteran's March 2017 affidavit described near total involvement of his body, including his face. The Board also notes that the Veteran is currently suffering from major vascular neurocognitive disorder, also described as vascular dementia. At the October 2021 psychiatric VA examination, the VA examiner noted that the Veteran was not in contact with reality. Similarly, in July 2018, a mental status examination noted that the Veteran was not oriented to time, had memory deficits, markedly decreased concentration and attention problems, and poor hygiene. The triage nurse noted that the Veteran had a history of dementia. Consequently, the Board finds the Veteran's contemporaneous descriptions of his skin symptoms made to clinicians more persuasive, as they are more consistent with the physical examination findings and clinical descriptions. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board finds that there was an ascertainable increase in the severity of the Veteran's skin disability symptoms within one year prior to the date of receipt of the increased rating claim; specifically on August 10, 2012. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Specifically, the August 10, 2012 treatment records show that the Veteran's skin symptoms had increased in severity, based on clinical observations documented on physical examination. Although the Veteran had reported skin rashes over a year prior to the receipt of the claim for an increased rating, physical examinations had not revealed skin abnormalities. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's dermatophytosis symptoms most closely approximate characteristic lesions involving more than 20 percent but no more than 40 percent of the Veteran's entire body since August 10, 2012. Clinicians examining the Veteran during flare-ups have described the manifestations as an oval red rash on his arm, scaly, hypopigmented ring-shaped patches over his trunk and upper extremities which would involve at least 20 percent of the Veteran's total body. However, this clinical description of discrete patches distributed over the Veteran's trunk and arms is most consistent with less-than-total involvement of these areas of the body, i.e., less than 40 percent in total. In sum, the most persuasive evidence, including the Veteran's contemporaneous statements to treatment providers and clinical observations of his skin, shows that the Veteran's skin disability symptoms most closely approximated characteristic lesions involving least 20 percent, but no more than 40 percent of the Veteran's entire body. Accordingly, a 30 percent evaluation is warranted since August 10, 2012. The Veteran's skin disability symptoms do not satisfy the requirements for a 60 percent rating. First, the Veteran's skin disability has not required treatment involving 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 over the past 12-month period. Secondly, the characteristic lesions of the Veteran's skin disability have not involved more than 40 percent of his entire body, or more than 40 percent of exposed areas affected. At its most extensive, the Veteran's skin condition manifested as discrete patches over his chest, back and arms. As noted above, this indicates significant, but less than total, involvement of these areas, i.e., less than 40 percent of the Veteran's entire body. Accordingly, a 60 percent rating (the maximum schedular rating) is not warranted. Extraschedular Rating The Veteran contends that his symptoms of constant itching and burning warrant an extraschedular rating. The first step to evaluating whether an extraschedular rating is warranted, is to determine whether the evidence presents an exceptional disability picture such that the available schedular evaluation is inadequate. See Thun v. Peake, 22 Vet. App. 111. The Veteran stated his skin disability is exceptional in relation to the rating schedule, 38 C.F.R. § 4.118, Diagnostic Code 7813, because it is characterized by discomfort, constant scratching that limits his ability to go outside his home due to embarrassment, and anxiety which limits his appetite. While Diagnostic Code 7813 does not explicitly refer to the symptoms listed by the Veteran, the criteria do rate based on the extent of "characteristic lesions" and treatments required for such. Discomfort, itchiness, scratching, and impaired appearance are characteristics of skin conditions, and hence are effectively considered in the schedular evaluations. As for the contention that the Veteran's skin condition causes him anxiety resulting in weight loss due to appetite suppression, the Veteran is not competent to draw a causal connection between his skin condition and any psychiatric conditions he may have. 38 C.F.R. § 3.159(a)(2). Moreover, if the Veteran's service-connected skin disability caused or aggravated a psychiatric condition, the Diagnostic Codes provide for a separate rating of those psychiatric symptoms, and extraschedular referral on this basis is not warranted. A claim for service connection of an acquired psychiatric disorder is discussed below. Nevertheless, even if the Veteran's symptoms were not contemplated by the rating criteria, the Veteran's skin disability has not exhibited other related factors such as marked interference with employment or frequent periods of hospitalization. During the appeal period he has not required emergency treatment or hospitalization, nor has his skin condition required the level of treatment contemplated by the 60 percent rating. Accordingly, referral for extraschedular consideration to the Director of Compensation Service is not warranted. REASONS FOR REMAND VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c)(2). VA's duty to assist claimants to obtain evidence needed to substantiate a claim also includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1). In addition, 38 C.F.R. § 3.159(c)(4) requires the VA to provide medical examinations or obtain medical opinions when there is competent evidence of a disability; evidence the Veteran suffered and in-service event, disease, or injury; evidence indicating that the claimed disability may be associated with the in-service event, disease or injury and insufficient competent medical evidence to decide the claim. Once VA undertakes to provide an examination, VA must provide an adequate examination and opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran reports that he has received treatment at the VA Hospital in San Juan since 1956. However, VA treatment records prior to 2008 are not associate with the claims file. In addition, the claims file shows that in 1975, the Veteran received approximately three weeks of inpatient psychiatric treatment at a non-VA facility. The Veteran contends that he was sent to this facility by VA. However, apart from a letter describing his condition at discharge from his psychiatrist, indicating that the Veteran would be receiving further treatment, no records from this provider have been associated with the claims file. This letter was addressed to the Veteran's employer at the time, Thom McAn. Accordingly, a remand to attempt to obtain these records is required. As for the Veteran's service records, some records appear to have been destroyed in a 1973 fire. Other records, however, indicate that the Veteran subsequently served in the National Guard, and from at least May 1978 and June 1982. The Veteran has stated that he served in the National Guard for approximately 30 years. The Board notes that the Veteran is service connected for residual scar from a left forehead laceration incurred during his 1982 National Guard service, from a fall where he hit his head on a rock and incurred a four-inch laceration. With the exception of some records from 1982, personnel and treatment records from the Veteran's National Guard service are not associated with the file. A remand is required. Finally, with respect to the October 2021 VA nexus opinion, a new opinion is needed. The July 2018 Board remand directed the examiner to determine the nature and etiology of any claimed psychiatric disorder and opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The October 2021 VA examiner noted that the Veteran had been diagnosed with major depressive disorder. However, the examiner did not render an opinion as to whether the Veteran's depression was at least as likely as not related to his active-duty service, or proximately caused or aggravated by his service-connected disabilities, including his skin disability and residuals of his forehead laceration, which involved an incident where the Veteran hit his head on a rock and suffered a four inch laceration which required stitches. The Board further notes that the Veteran has claimed that his anxiety is aggravated by his service-connected skin disability. A remand for an adequate opinion is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for his psychiatric condition. Records from Dr. FT at the Centro De Salud Mental in San Patricio, Puerto Rico, must be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records, from at least March 1975. The Veteran should be informed that in the alternative he may obtain and submit the records himself. All records must be translated into English prior to re-adjudication and return to the Board. 2. Contact the Veteran and request a properly executed release for employment records from the Veteran's former employer, Thom McAn, as these records may be relevant to the Veteran's claim for service connection for an acquired psychiatric condition. Upon receipt of such, VA must take appropriate action to contact the identified employer and request employment records from 1972 to 1977. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. Associate with the file all VA treatment records from May 1956 to present time. All archived records must be recalled, and all efforts to obtain these records must be documented; the AOJ is reminded that these records are Federal Records. 4. Identify and obtain records of the Veteran's service in the National Guard reflecting service from the 1960s through at least the 1980s. All efforts to obtain these documents, from both Federal and Puerto Rican custodians must be documented in the file. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 5. Then, obtain an addendum nexus opinion from a VA examiner regarding the Veteran's diagnosed psychiatric disorders, to including depressive disorder and neurocognitive disorder. The claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The Board reminds that AOJ that the October 2021 VA examiner found that the Veteran was not in touch with reality. The reviewer must opine as to whether it is at least as likely as not that (50 percent probability or greater) that the Veteran's psychiatric conditions, to include PTSD and depressive disorder are caused or aggravated by service or a service-connected condition, to include skin disorders. A complete rationale is required for all opinions provided; lay statements and descriptions of the incident in the claims where the Veteran suffered a four -inch laceration to his left forehead after tripping and hitting his head on a stone must be addressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. After the above has been completed, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.