Citation Nr: 1800083	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-15 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois


THE ISSUE

Whether the reduction in the evaluation of service-connected dyshidrosis of the feet and hands from 50 percent to 30 percent effective September 1, 2012 was proper.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel

INTRODUCTION

The Veteran served on active duty from August 1974 to September 1975.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision that reduced the rating for a service-connected skin disorder (dyshidrosis of the feet and hands) from 50 to 30 percent, effective September 1, 2012.
 
A hearing was held in August 2017 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

There are other issues that are not before the Board. The Agency of Original Jurisdiction (AOJ) has issued a statement of the case in November 2017 with regard to the issue of service connection for an acquired psychiatric disorder. As that appeal has not yet been perfected and certified to the Board, the matter is not in appellate status and will not be addressed by the Board.

The Veteran has filed a notice of disagreement at the RO concerning the issues of service connection for hearing loss and tinnitus as shown in the electronic claims file (VBMS). Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the notice of disagreement and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issue presently before the RO pertaining to these issues will be the subject of a later Board decision, if ultimately necessary. 

FINDINGS OF FACT

1. In an October 1988 rating decision, the RO granted service connection and a 50 percent rating for dyshidrosis of the feet and hands effective April 14, 1988.

2. In an April 1991 rating decision, the RO reduced the rating for dyshidrosis of the feet and hands to 30 percent, effective July 1, 1991.

3. In an April 1993 rating decision, the RO granted a higher 50 percent rating for dyshidrosis of the feet and hands from October 19, 1992, a temporary 100 percent rating for dyshidrosis of the feet and hands, based on hospitalization, from November 9, 1992, with a 50 percent rating effective January 1, 1993.

4. In a March 2012 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected dyshidrosis of the feet and hands from 50 percent to 30 percent; the RO notified the Veteran of this proposed action in a corresponding March 2012 letter.

5. In a June 2012 rating decision, the RO discontinued the 50 percent rating for dyshidrosis of the feet and hands and assigned a 30 percent rating, effective September 1, 2012.

6. In an August 2012 rating decision, the RO confirmed and continued the rating reduction to 30 percent effective September 1, 2012.

7. Service-connected dyshidrosis of the feet and hands was rated as 50 percent disabling for more than five years when the RO reduced the rating to 30 percent.

8. A February 2012 VA examination did not show sustained material improvement in the service-connected dyshidrosis of the feet and hands that was reasonably certain to be maintained under the ordinary conditions of life.



CONCLUSION OF LAW

The rating reduction from 50 percent to 30 percent for dyshidrosis of the feet and hands from September 1, 2012 was not proper, and the 50 percent rating is restored. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7811, 7817 (1992); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.118, Diagnostic Code 7806 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the fully favorable nature of the Board's decision as to restoration of the 50 percent rating for service-connected dyshidrosis of the feet and hands.

Propriety of the Rating Reduction

The Veteran essentially contends that the reduction of his disability rating from 50 to 30 percent for service-connected dyshidrosis of the feet and hands was improper, and that the prior rating should be restored. See his January 2013 notice of disagreement and April 2014 substantive appeal. He has asserted that the severity of his skin disorder waxes and wanes, and that his February 2012 VA examination was performed on a good day. See August 2017 hearing transcript. He testified that although his condition was better at the time of his VA examination, it was not sustained improvement, because he had another outbreak three weeks after the examination. See hearing transcript at page 11. He testified that he has outbreaks five or six times per year, and each outbreak lasts about six weeks. He also testified that he often treats his skin condition himself without seeking medical care for it, and that therefore all of his skin outbreaks are not documented in his treatment records. He stated that his skin symptoms were so bad sometimes that he could not hold anything with his hands, or walk on his feet. He said his symptoms included pain, swelling, and skin peeling. 

Historically, in an October 1988 rating decision, the RO granted service connection and a 50 percent rating for dyshidrosis of the feet and hands effective April 14, 1988, under Diagnostic Codes 7899-7817 (pertaining to dermatitis exfoliativa). See 38 C.F.R. § 4.71a. 

In an April 1991 rating decision, the RO reduced the rating for dyshidrosis of the feet and hands to 30 percent, effective July 1, 1991, under Diagnostic Codes 7899-7817. Then, in an April 1993 rating decision, the RO granted a higher 50 percent rating for dyshidrosis of the feet and hands from October 19, 1992, a temporary 100 percent rating for dyshidrosis of the feet and hands, based on hospitalization, from November 9, 1992, with a 50 percent rating effective January 1, 1993, under Diagnostic Codes 7899-7811 (pertaining to tuberculosis luposa (lupus vulgaris), active or inactive).

Pursuant to 38 C.F.R. § 4.27, the diagnostic code numbers assigned for ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned. Hyphenated diagnostic codes are appropriate where, as here, the disability is rated by analogy. Id.

For conditions that are not specifically listed in the Schedule, such as dyshidrosis, VA regulations provide that those conditions may be rated by analogy under the Diagnostic Code for "a closely related disease or injury." 38 C.F.R. § 4.20. Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'" Suttman v. Brown, 5 Vet. App. 127, 134 (1993).

At the August 2017 Board hearing, the Veteran's representative asserted that Diagnostic Code 7811 was not necessarily the appropriate code with which to rate his service-connected skin disorder, as it did not contemplate all of his symptoms.

In this regard, the Board observes that the Veteran's medical records reflect that his service-connected skin disorder has also been characterized as eczema. For example, a December 1992 VA hospital discharge summary reflects discharge diagnoses of dyshidrotic eczema with secondary infection, and cobalt and chromate allergy. A February 1993 VA hospital discharge summary reflects discharge diagnoses of palmar plantar pustulosis and history of dyshidrotic eczema. "Dyshidrotic eczema" or "pompholyx" is defined as recurrent eczema with blistering on the palms and soles, particularly along the sides and between the digits, accompanied by pruritis, a burning sensation, and hyperhidrosis.  See Dorland's Illustrated Medical Dictionary, 32nd ed., 2012, at 1495).

In a March 2012 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected dyshidrosis of the feet and hands from 50 percent to 30 percent; the RO notified the Veteran of this proposed action in a corresponding March 2012 letter.

In a June 2012 rating decision, the RO discontinued the 50 percent rating for dyshidrosis of the feet and hands and assigned a 30 percent rating, effective September 1, 2012. The code sheet listed the Diagnostic Code as 7899-7811. In an August 2012 rating decision, the RO confirmed and continued the rating reduction to 30 percent effective September 1, 2012. The code sheet listed the Diagnostic Code as 7899-7811, and a handwritten note on the code sheet stated, "Should be 7806."

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Governing law provides that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155 (2012). 

The Board notes that prior to the instant appeal, the criteria for rating the skin were amended, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7833 (2017)). 

A readjustment to the schedule for rating disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability has actually improved. 38 C.F.R. § 3.951(a). A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of the reduction of evaluation. 38 C.F.R. § 3.951(b). 

As the Veteran's service-connected dyshidrosis of the feet and hands has been rated at or above 30 percent since July 1, 1991, this rating is protected as it was in effect for more than 20 years. See 38 C.F.R. § 3.951(b). The skin disorder was rated at or above 50 percent from October 19, 1992 to September 1, 2012 under Diagnostic Codes 7899-7811, and this rating and Diagnostic Code are not protected as the rating was in effect for slightly less than 20 years. Id.; see also Murray v. Shinseki, 24 Vet. App. 420 (2011).

A disability rating may be reduced. However, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of VA. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The procedural framework set forth in 38 C.F.R. § 3.105 (e) governing rating reductions is required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999).

VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if VA does not receive additional evidence within that period, it will take final rating action and reduce the award effective the last day of the month following 60 days from the date of notice to the beneficiary of the proposed reduction. Id. The beneficiary will also be informed that he or she will have an opportunity for a predetermination hearing. 38 C.F.R. § 3.105 (i).

In cases where a rating has been in effect for five 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 (1995). A rating that has been in effect for five 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. 38 C.F.R. § 3.344 (a) (2017). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344 (b) (2017). 

The Board observes that the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable because the 50 percent rating for dyshidrosis of the feet and hands was in effect for more than five years (it became effective on October 19, 1992 and was reduced as of September 1, 2012). 

Pursuant to 38 C.F.R. § 3.344 (a) and (b), disability ratings which have continued for long periods of time at the same level (5 years or more) may not be reduced without the following: review of the entire record of examinations and the medical-industrial history to ensure that the current examination is full and complete, the examination must be as full and complete as the examination upon which the original award was based, ratings on account of diseases subject to temporary or episodic improvement (e.g. many skin diseases) will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, ratings on account of disease which become comparatively symptom free after prolonged rest will not be reduced on examinations reflecting the result of bed rest, and where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. If doubt remains, the rating will be continued subject to reexamination within a specified period of time (18, 24, or 30 months).

 Moreover, it is well established in the case law of the United States Court of Appeals for Veterans Claims (Court) that VA cannot reduce a Veteran's disability evaluation without first finding, inter alia, that that an improvement has actually occurred in the Veteran's service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown, 5 Vet. App. at 421. Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22.

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

After a review of all of the evidence of record, the Board finds that the notice and due process requirements of 38 C.F.R. § 3.105 have been met. The Veteran was notified of the RO's intent to discontinue the 30 percent rating for his service-connected internal derangement of the right knee by a letter dated in March 2012. He did not request a predetermination hearing regarding the issue. Final action to reduce the 50 percent rating to 30 percent was taken pursuant to 38 C.F.R. § 3.105  (e) in June 2012. The Veteran was informed of the decision by a letter dated in June 2012, and the decision was confirmed in August 2012. The reduction was made effective beginning September 1, 2012. The reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105 (e). The Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 50 percent rating, which resulted in a reduction of the Veteran's benefits.

The service-connected dyshidrosis of the feet and hands was originally evaluated by analogy under Diagnostic Code 7817, pertaining to dermatitis exfoliativa, and then since 1992 by analogy under Diagnostic Code 7811, pertaining to tuberculosis luposa. Currently, the RO has rated this disability under current Diagnostic Code 7806, pertaining to dermatitis or eczema. 38 C.F.R. § 4.118 (2017).

In 1992, at the time the 50 percent rating was assigned, multiple skin disorders, including dermatitis exfoliativa, were rated as eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. Under prior Diagnostic Code 7806 (eczema), a 30 percent rating was assigned for constant exudation or itching, extensive lesions, or marked disfigurement, and a maximum 50 percent rating was assigned for ulceration or extensive exfoliation or crusting, and systematic or nervous manifestations, or exceptionally repugnant. 38 C.F.R. § 4.118 (1992). Under Diagnostic Code 7811, tuberculosis luposa was assigned a 100 percent rating when active, and when inactive was rated under 38 C.F.R. § 4.88b and § 4.89. The former provides that after the first year, inactive tuberculosis is rated based on residuals under the specific body system affected. The latter provides for a 50 percent rating for 4 years, or in any event, to 6 years after date of inactivity.

The current Diagnostic Code 7806, contemplating dermatitis or eczema, provides for ratings ranging from 0 percent to 60 percent based on either the percentage of the entire body or of exposed areas affected or on the need for systemic therapy. A 0 percent rating is warranted for dermatitis or eczema that involves 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-month period. A 10 percent rating is warranted for dermatitis or eczema that involves 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 warranted for dermatitis or eczema that involves 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 warranted for dermatitis or eczema that involves 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. 38 C.F.R. § 4.118 (2017).  Alternatively, the disability is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or as scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects "only the area to which it is applied" to count as a systemic therapy under that code. The use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. The use of topical corticosteroids does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).

VA medical records dated from March 2011 to 2013 reflect episodic treatment for eczema and dyshydrosis. In March 2011, the Veteran complained of a left hand rash for a few weeks; on examination, he had an erythematous rash that was raw, weeping, and scaly. The diagnostic assessment was cellulitis of the left hand. Antibiotics were prescribed. In November 2011, he had no rash.

On VA examination in February 2012, the examiner indicated that the Veteran's skin condition was a type of dermatitis or eczema, and diagnosed dyshidrosis. He had break-outs with blisters 4-5 times a year for which he used over-the-counter (OTC) topical creams. He reported that during breakouts, he had difficulty using his hands because of the blisters. The examiner stated that the skin condition had been treated with oral or topical medications in the past 12 months, specifically topical corticosteroids for less than 6 weeks in the past 12 months. He did not have any other treatment or procedures for exfoliative dermatitis or papulosquamous disorders. He had no debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme or toxic epidermal necrolysis. The examiner indicated that dermatitis affected less than 5 percent of total body area and less than 5 percent of exposed area.

In March 2012, the Veteran was seen at a VA primary care clinic for an annual examination. He reported increased dyshidrosis, now flared on the left hand today. He reported that he broke out and then got blisters on both hands and feet. He was out of all of his medication. He said he was starting to break out on his hands and feet. The examiner stated that there were no lesions or open wounds, but prescribed topical medication for dyshydrosis, clobetasol cream to the hands daily for two weeks, and triamcinolone ointment to use as needed for a lighter outbreak. In June 2012, he was seen for a flare-up of his rash. On examination, the rash was flaring on his hands again, and he was out of the cream. The Veteran reported that when he used the steroid cream it resolved about 50 percent. On examination, there were scattered patches of scaling rash on both hands, very dry; warm, dry to touch, good turgor, no lesions or open wounds. The diagnostic assessment was dyshidrosis; he was prescribed topical steroid as needed, and ammonia lactate lotion.

After review of the record, including the medical evidence and the Veteran's testimony, the Board finds that restoration of the 50 percent rating is warranted, as the evidence does not adequately establish that there was sustained, actual improvement in the Veteran's service-connected skin disorder. The clinical evidence at the time of the reduction did not indicate material improvement in the Veteran's service-connected dyshidrosis of the feet and hands including improvement under the ordinary conditions of life. The primary basis of the reduction was the February 2012 VA examination report. The evidence shows that Veteran's skin disorder is subject to temporary or episodic improvement, and such disorders will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). The Board finds that the evidence does not demonstrate that it is reasonably certain that the improvement will be maintained under the ordinary conditions of life, as shown by repeated episodic skin outbreaks after the February 2012 VA examination. 

If there is any doubt as to whether there has been material improvement in the given disability, the rating in effect will be continued. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). That is the case here, as the February 2012 VA examination report and VA outpatient treatment records do not show sustained, actual improvement in the Veteran's service-connected skin disorder. Accordingly, the Board finds that the reduction proposed by the March 2012 rating decision and promulgated by the June 2012 rating decision was not proper. 

As the evidence does not establish that there has been a sustained material improvement in the service-connected dyshidrosis of the feet and hands that was reasonably certain to be maintained under the ordinary conditions of life, a reduction is not warranted. Accordingly, the 50 percent disability rating for such must be restored.

Thus, while the Veteran's objective examination findings in February 2012 may be consistent with some improvement, the evidence does not establish that the Veteran had an improvement allowing him to better function under the ordinary conditions of life and work. See Murphy, supra; Brown, supra. The reduction in rating for dyshidrosis of the feet and hands from 50 percent to 30 percent was not proper, and restoration of the 50 percent rating from September 1, 2012 is granted.


ORDER

Restoration of a 50 percent disability rating for dyshidrosis of the feet and hands is granted, subject to the laws and regulations governing the payment of monetary benefits.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs