Citation Nr: 1303534 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 12-14 393A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether the reduction of disability rating for eczematous dermatitis from 60 percent to 10 percent, effective December 1, 2010, was proper. 2. Entitlement to an increased disability rating for eczematous dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1955 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which reduced the Veteran's disability rating for eczematous dermatitis from 60 percent to 10 percent, effective December 1, 2010. A subsequent rating decision in May 2012 granted an increased disability rating of 30 percent for eczematous dermatitis, effective January 5, 2012. The propriety of the reduction and the claim for an increased rating are both encompassed in the present appeal before the Board. In his June 2012 substantive appeal (VA Form 9), the Veteran requested the opportunity to appear at a hearing before the Board. He withdrew that request in a written statement submitted in September 2012. The Board will adjudicate the appeal based on the evidence of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased disability rating for eczematous dermatitis is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A rating decision dated in July 2010 proposed to reduce the assigned disability rating for eczematous dermatitis from 60 percent to 10 percent; this was implemented in a September 2010 rating decision, effective December 1, 2010. 2. The medical evidence of record does not establish that there was an actual improvement in the Veteran's service-connected eczematous dermatitis. CONCLUSION OF LAW The reduction of the disability rating for eczematous dermatitis from 60 percent to 10 percent was not proper. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim regarding the propriety of the reduction in his disability rating for eczema. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Standard Regarding Rating Reductions A reduction in the evaluation of a service-connected disability is allowed when warranted by the evidence but only after following certain procedural guidelines. 38 C.F.R. § 3.105(e). First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Prior to the reduction, the Veteran's 60 percent disability rating for eczematous dermatitis had been in effect from August 30, 2002, a period of more than five years. As a result, the provisions of 38 C.F.R. § 3.344(a) and (b), governing the circumstances in which rating reductions are proper, apply. Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement, such as with skin disabilities. 38 C.F.R. § 3.344(a). In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions. Id., 5 Vet. App. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id., 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2, establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a Veteran's disability. Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10; 38 C.F.R. 3.344(c). A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Diagnostic Code 7806 pertains to disability ratings for dermatitis or eczema. Dermatitis or eczema is rated either under the criteria of Diagnostic Code 7806 criteria or as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Diagnostic Code 7806 provides that dermatitis or eczema affecting 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, is rated 10 percent disabling. Dermatitis or eczema affecting 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, is rated 30 percent disabling. Dermatitis or eczema affecting 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, is rated 60 percent disabling. 38 C.F.R. § 4.118. Facts and Analysis When service connection was initially granted for eczematous dermatitis, a 30 percent disability rating was assigned effective August 20, 1999. When the rating criteria for skin disabilities was subsequently revised, the Veteran's condition was re-evaluated and a 60 percent disability rating was assigned under the new criteria, effective August 30, 2002. The September 2010 rating decision presently on appeal assigned a reduced disability rating of 10 percent, effective December 1, 2010. Later, an increased disability rating of 30 percent was assigned, effective January 5, 2012. The issue on appeal of necessity requires a review of the evidence relative to the disability throughout the history of the claim. The Veteran was first examined by VA in June 2000. He reported itchy scaly lesions and a rash over his back. He had been given steroid creams with some minor effect on his chronic itching and pain. He was noted to have generalized flat hyperpigmented lesions measuring one half inch to two inches over the entire back with evidence of pruritus and minor superficial ulcerations. At an October 2001 VA examination, the Veteran reported recurrent flare-ups of his rash. The rash involved the back only, with occasional lesions on the chest and abdomen, and never cleared completely; there was always discoloration of the skin. He had been treated in the past systemically with both Atarax and Benadryl and topically with Lidex cream, benzoyl peroxide gel, Triamcinolone cream and a liquid. The itching usually resolved in approximately one week with treatment. The Veteran's back was described as having diffuse tan, non-scaly macules and linear tan and brown patches, some other lesions on the shoulders and posterior neck and the proximal arms. The remainder of the skin was clear. The Veteran was next examined by VA in December 2002, when he reported that his skin condition had worsened. Initially the pruritic rash involved the posterior thoracic area, and over time had spread to his lumbar area, his forehead, his posterior neck, and occasionally his left anterior chest. The medication regimen consisted of hydrocortisone valerate, which he applied twice daily with fairly good response, and an oral medication that he took if his itching increased. An October 2003 VA dermatological consultation note showed that the Veteran had been treated with topical steroids since 2000 and was currently using Cyclocort, Vanicream, and Claritin. He had previously tried topical creams with only temporary effect. The Veteran's symptoms, a rash and intense pruritus, were noted to occur mostly in winter. He had erythematous papules on his posterior neck with small amounts of hemorrhagic crusting and scaling, hyperpigmented macules, and hyperpigmented, lichenified and scaling plaques on his forearms. The Veteran was again examined by VA in July 2004. He had last used hydrocortisone valerate in May 2004 and had not noticed any improvement with hydroquinone and felt that it caused some itching. He had noticed some reduction in his itching after using Claritin, but it did not give complete relief. Examination of the skin revealed a papery texture to the left posterior cervical area with minimal erythema or pigmentation. Although he described this area as the source of his eczema, there was no other visible abnormality of the skin beyond the altered texture. At the time of the examination, there was no evidence of an active eczematous eruption. In February 2006, the Veteran was seen for follow-up treatment of his eczema. He complained of severe itching at the medial base of his scapula, and was being awakened at night by the itching. Claritin had provided only minimal relief and he thought he was allergic to Doxepin. An October 2006 VA examination noted mild pigmentation of the upper left side of the Veteran's neck, as well as on his waist and hip area. He had no current active lesions and reported no breakouts on his upper body in the previous two years. The examiner diagnosed residuals of atopic dermatitis and noted that the affected body surface area and exposed body surface area were both about 1 percent. In March 2009, the Veteran was treated for a flare-up of eczema with increased itching at night and after hot showers. Physical examination showed light brown hyperpigmentation on the back and small papules with hemorrhagic crusting on the low back and left hip. He had seen little improvement with prescription medication and Atarax made him dizzy. Private treatment records from April 2010 indicate that the Veteran had eczematous dermatitis and dryness all over his body for several years, with patches on the upper and lower extremities and back, as well as flaking, scaling, erythema, and excoriations. He was prescribed prednisone and Atarax as oral medications and as well as topical creams. On June 2010 VA examination, the Veteran reported that his eczema came and went; it was currently active behind his left ear. He had many areas of scarring and discoloration on his body from prior flare-ups. He was receiving multiple medications, including prednisone and Atarax as oral medications and topical creams. The Atarax occasionally made him dizzy. His primary symptom was local itching and he had no systemic symptoms. The examiner noted multiple locations of scarring but no clear active lesions other than behind the left. The estimated body surface involved was 6 percent, and the condition resulted in only a minimal degree of functional impairment. A June 2010 written statement from the Veteran's private health care provider noted his history of eczema on his back, legs, and forearms, as well as spots on his face and thickening of the fingernails. The provider had prescribed prednisone, Atarax, and topical creams, and instructed the Veteran to avoid specific irritants. Beginning in October 2010, the Veteran began receiving regular intramuscular injections to treat his eczematous lesions. He complained of excessive itching and of blotchy pigmentation on his face. He continued to take prednisone and Atarax. A private treatment record in January 2012 noted that the Veteran's eczematous dry skin with erythema, flaking, scaling, and excoriations covered his trunk and arms, amounting to 40 percent of the body surface area. He was given additional intramuscular injections and continued on his oral and topical medication. On May 2012 VA examination, the Veteran's longstanding diagnosis of atopic dermatitis was noted. He was being treated with topical medications and with systemic therapy, including Atarax. The examiner noted that the eczema affected between 5 and 20 percent of body surface area and less than 5 percent of exposed body area. Applying the facts in this case to the criteria for rating reductions set forth above, the Board finds that the proper procedural steps were followed in implementing the reduction. The Veteran was provided with proper advance notice of the proposed reduction and an opportunity to present evidence opposing the reduction. The effective date of the reduction was properly calculated as occurring after 60 days following the rating decision on appeal here. In addition, the requirements of 38 C.F.R. § 3.344 were met, in that the decision to reduce the assigned disability rating was made after multiple VA examinations of the Veteran's skin. Again, there was no procedural defect with respect to the reduction in this case. However, determining if there was procedural compliance is only the first step in evaluation the propriety of a rating reduction. The Board must also consider whether the evidence has shown an actual improvement in the disability and if such improvement is likely to be maintained under the ordinary conditions of life. Brown v. Brown, 5 Vet. App. 413 (1993). Such an assessment must be made based on the history of the disability at issue. 38 C.F.R. §§ 4.1, 4.2. In this instance, there has been no demonstration of actual improvement in the Veteran's eczematous dermatitis, particularly in light of the history of this condition as set forth in detail above. Specifically, the Veteran's symptoms remain the same: recurrent rash and itching over his back, extremities and face, hyperpigmentation at the site of previous flare-ups, and the use of both oral and topical medication. The amount of body surface affected by the Veteran's flare-ups has varied, from less than 5 percent to more than 40 percent. However, the Veteran's physicians have almost continuously prescribed systemic medications, namely prednisone - a corticosteroid - and Atarax. The use of corticosteroids on a near-continuous basis from prior to the rating reduction at issue to the present is consistent with the originally assigned 60 percent disability rating. The remainder of the symptoms being consistent, albeit subject to fluctuations, shows that there was no demonstration of sustained improvement in the condition sufficient to warrant a rating reduction. In short, while procedurally correct, the rating reduction was nonetheless improper under the facts of the case. The benefit of the doubt being afforded to the Veteran in such cases, the 60 percent disability rating for eczematous dermatitis is restored. Brown v. Brown, 5 Vet. App. 413, 421 (1993). ORDER The reduction of the 60 percent disability rating for eczematous dermatitis was not proper, and restoration of the 60 percent disability rating is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The reduction in assigned disability rating addressed above was precipitated, at least in part, by the Veteran's claim for an increased disability rating for his eczematous dermatitis. While the Veteran was provided with appropriate VCAA notice relative to this claim, the claim for an increased disability rating was not adjudicated by the RO in the first instance. Inasmuch as the above decision restores the original 60 percent disability, the issue of entitlement to an increased disability rating remains and must be adjudicated on remand. Accordingly, the case is remanded for the following action: 1. Adjudicate the claim for an increased disability rating for eczematous dermatitis, to include obtaining a current evaluation of the nature and severity of the Veteran's symptoms. 2. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs