Citation Nr: 1752079 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-15 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating for a skin disorder in excess of 10 percent prior to January 30, 2017, and 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for a skin condition; and a November 2008 rating decision issued by the RO in Pittsburgh, Pennsylvania, which continued the rating assigned at 10 percent. Jurisdiction over the appeal presently rests with the RO in Pittsburgh. During the pendency of this claim, a June 2017 rating decision granted an increased disability rating of 30 percent for the disability on appeal, effective January 30, 2017. As that rating is not the maximum rating available under the diagnostic code for the disorder on appeal, nor does it cover the entire period on appeal, the matter remains before the Board. The Board has characterized the issue on appeal to reflect the staged increase, as described above. FINDINGS OF FACT 1. Prior to January 30, 2017, the Veteran's skin disorder affected no more than 10 percent of his total body, and required no more than topical skin cream for treatment. 2. From January 20, 2017, the Veteran's skin disorder affected between 20 and 40 percent of his total body, and required no more than topical skin cream for treatment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a skin disorder, prior to January 30, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.118, Diagnostic Code (DC) 7806 (2017). 2. The criteria for a rating in excess of 30 percent for a skin disorder, from January 30, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in October 2007. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, VA examination reports, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Increased Disability Rating The Veteran is presently service connected for a skin condition, with a rating of 10 percent disabling from June 14, 2007, and 30 percent disabling from January 30, 2017. He asserts he is entitled to higher ratings for all periods on appeal. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2017). The Veteran's skin condition is rated under Diagnostic Code 7806, which compensates for skin conditions such as dermatitis or eczema. Under the applicable criteria, 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. 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806 (2017). 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. Id. Finally, 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. Id. After careful review, the Board finds that increased ratings cannot be granted under the diagnostic criteria during any period on appeal. Particularly, VA dermatology records from April 2007, just prior to submitting his claim of service connection, show the trunk with scattered, pink, scaly, oval-shaped plaques; a large erythematous plaque with peripheral scale and central clearing on the left buttock, and mildly, scaly erythematous plaques on the groin. A topical cream was prescribed for four weeks, and if no improvement was seen on follow up, oral medication was considered. That record did not provide a description of the percentage of total body affected by the condition. In April 2008, the Veteran was afforded a VA examination in connection with his service-connection claim. At that time, the Veteran reported his rash occurring intermittently, and generally occurring on the trunk, arms, and groin area. At the time he had reported a rash on his chest and groin. He denied any light therapy, oral steroid therapy, or immunosuppressant therapy for his condition. He reported the condition worsening in the summertime, with raised, red blotches that are itchy. He did report about 80 percent improvement with ketoconazole shampoo (used for approximately two weeks at the first sign of a flare-up). The examiner reported tinea versicolor involving 5 percent of the Veteran's unexposed skin area (0 percent of the exposed area), for a total of 5 percent total skin surface. The examiner specifically described a seven cm by eight cm area on the chest and one and a half inch band extending under each breast with pink, raised, round area. There were no lesions on the trunk, abdomen, neck, or legs. He did have some erythema in both groin areas, extending for a half-inch wide area by approximately six cm long and one cm wide. A total of 5 percent but less than 20 percent of total skin affected is compensated by a 10 percent rating. A July 2008 private medical record indicated no rashes or ulcers, although the Board notes that that record was completed in connection with a pulmonary examination, and not a skin examination. In August 2008, a new VA examination was conducted. The Veteran used topical cream as needed, and medicated shampoo daily to treat his skin condition. He denied use of corticosteroids or other immunosuppressive drugs. He reported flare-ups and worsening in the summer months between May and September. He had half to one cm erythematous papules with white scale noted on the upper chest, extending to the neck across the mid back. He also had resolved areas in the groin bilaterally; scant areas in the antecubital crease; and demarcated scaly patches located on the right mid sole of the foot. Otherwise he was unremarkable over the body. The examiner stated that the Veteran's tinea versicolor presently affected 10 percent of his unexposed skin, and none of his exposed skin, for a total of 10 percent of his total body affected. Again, with less than 20 percent of the total skin affected, a 10 percent rating is assigned under the diagnostic criteria. In July 2014, the Veteran was afforded a new VA examination. The Veteran stated that he was going to let the condition flare up prior to his examination, but he was going to the beach with his new girlfriend and wanted to look good, so he used his medicated shampoo. The Veteran's skin appeared without lesions, warm, dry and tanned. At that time, the examiner found no evidence of a skin condition, beyond the Veteran's reports. The examiner stated that the Veteran did not use any topical or oral medications (although previously noting the use of medicated shampoo). A December 30, 2014, private treatment record noted normal skin color and pigmentation. Private dermatology records indicate that on April 1, 2015, the Veteran presented with brown lesions, moderate in severity. He presented with benign nevi throughout the body; reticulated light tan macules in sun distribution; a dome-shaped dermatofibroma nodule on the right distal pretibial region; actinic keratosis on the right centra forehead, right superior central forehead, nasal dorsum, and left lateral forehead; and bright, cherry-red papules located on the trunk. Four lesions were treated with liquid nitrogen, and the Veteran was counseled in the use of sun screen. Despite evidence of skin lesions across the body, this record does not provide any indication as to the maximum percentage of skin affected by the Veteran's service-connected skin condition, nor does it indicate any type of regular or prolonged treatment. A further private dermatology record shows that April 11, 2016, the Veteran was seen for skin lesions which were described as affecting his entire body and moderate in severity. That record indicates no prior treatment. The Veteran had benign nevi, regular and symmetrical, located throughout the body; bright cherry-red hemangiomas throughout the body; erythematous patch with hyperkeratotic scale distributed on the right inferior central forehead, left superior medial forehead, and left medial forehead; and palmar and plantar erythematous scaly patches on the left hand, left foot and right foot. He was prescribed topical cream to be used twice daily. This record also does not provide any evidence of complete percentage of skin affected by the service-connected skin condition, nor does it imply that any treatment beyond topical creams has been prescribed. Finally, on January 30, 2017, the Veteran was afforded a new VA examination. The examiner stated that since the August 2014 examination, the Veteran reported his skin condition as coming and going, worse when the weather is warm and humid. The rash typically appears in the groin area and on his trunk, and is responsive to Selsun. There was no disfigurement of the head, face or neck. There were no benign skin neoplasms. He did not have any manifestations due to any skin diseases. In the prior twelve months, he had required topical medication only for a duration of greater than six weeks, but not constant use. He had no debilitating or non-debilitating episodes. On physical examination, the examiner determined that the Veteran's infections of the skin covered 20 to 40 percent of his total body area, with only 5 percent of his exposed area affected. Particularly, it affected his trunk front and back. Essentially, the Board finds that prior to January 1, 2017, and there is no evidence that the Veteran's service-connected skin condition ever affected more than 10 percent of his total body. It was not until that date, that at least 20 to 40 percent of his total body was found to be affected by his service-connected skin condition, per the Veteran's own description. Therefore, prior to January 1, 2017, a 10 percent rating is the maximum rating allowed under the Diagnostic Code. Thereafter, because his condition was found to affect between 20 and 40 percent of his skin, 1 30 percent rating is assigned under the diagnostic criteria. In addition, the Board has considered whether systemic treatment might afford a higher rating for any period on appeal, but finds that it does not. As outlined above, the evidence clearly demonstrates that the Veteran has used only topical medications applied directly to the parts of his body where the skin condition manifested and has not used systemic therapy to treat his service-connected skin disability at any point throughout the appellate period. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (reversing Johnson v. McDonald, 27 Vet. App. 497 (2016), the Court found that Diagnostic Code 7806 "draws a clear distinction between "systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code", and that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.") In sum, the Board finds that the diagnostic criteria do not support a rating in excess of 10 percent prior to January 30, 2017, and 30 percent thereafter, for a service-connected skin disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER An initial rating for a skin disorder in excess of 10 percent prior to January 30, 2017, and 30 percent thereafter, is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs