Citation Nr: 1805802	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-09 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an initial compensable rating for eczema from April 13, 2010 to March 26, 2014.

2.  Entitlement to a rating higher than 10 percent for eczema from March 26, 2014 to October 29, 2014.  

3.  Entitlement to a compensable rating for eczema from October 29, 2014.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

JR Cummings, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from July 1986 to March 2000, and again from March 2009 to April 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which granted service connection for follicular eczema (claimed as skin condition ) with a noncompensable rating effective April 13, 2010.

Following VA examinations in September 2011 and October 2015, the RO issued another rating decision in November 2015, creating a staged rating, which increased the Veteran's rating to 10 percent effective March 26, 2014, and then resumed the noncompensable rating effective March 27, 2015.  Because the Veteran was not granted the maximum benefit and did not indicate satisfaction with the assigned ratings, the issue of entitlement to higher ratings for eczema remains on appeal.  See. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise).  Moreover, the reduction in rating from 10 to 0 percent is the product of the application of staged ratings, and does not require compliance with regulations relating to rating reductions.  See Reizenstein v. Peake, 22 Vet. App. 202, 208-209 (2008).


FINDINGS OF FACT

1.  Symptoms of the Veteran's service-connected eczema from April 13, 2010 to March 26, 2014 show the Veteran was treated with an ointment on less than 5 percent of the total body area affected.

2.  Symptoms of the Veteran's service-connected eczema from March 26, 2014 to October 29, 2014 show the use of an intermittent systemic therapy required for a total duration of less than six weeks during the previous 12-month period.

3.  Symptoms of the Veteran's eczema more nearly approximate requiring constant/near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs from October 29, 2014.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for eczema from April 13, 2010 to March 26, 2014, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806 (2017).  

2.  The criteria for a rating higher than 10 percent for eczema were not met from March 26, 2014 to October 29, 2014.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806.

3.  With reasonable doubt resolved in favor of the Veteran, the criteria for a 60 percent rating, the maximum schedular disability rating for eczema, have been met from October 29, 2014.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93.  The requirements of the statutes and regulation have been met in this case.  VA notified the Veteran in November 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in November 2015.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, afforded the Veteran a VA examination.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

The Board will therefore proceed to the merits of the appeal.

II.  Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran's eczema is currently rated as noncompensable under DC 7806 for all but one year.  As the evidence of record shows no disfigurement of the Veteran's head, face, or neck (DC 7800), and no scars (DC's 7801, 7802, 7803, 7804, or 7805), the Board will continue to rate the Veteran's eczema under DC 7806.  

Under DC 7806, 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 intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be 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 be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be 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 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period.  38 C.F.R. § 4.118, DC 7806.

Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating.  Warren v. McDonald, 28 Vet. App. 194 (2016) (citing Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002)).  Consequently, the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs"; compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.  Id.

The Veteran is currently rated at 0 percent from April 13, 2010 to March 26, 2014, 10 percent from March 26, 2014 to March 26, 2015, and 0 percent from March 26, 2015.  He contends that he is entitled to higher ratings. 

During the period between April 13, 2010 and March 26, 2014, the September 2001 VA examination reflects that the Veteran's eczema was treated with a triamcinolone 0.1 percent ointment and examination findings reflect that the Veteran's diagnosis of follicular eczema affected no percent of exposed areas and less than 5 percent of the total body area.  A higher evaluation of 10 percent is not warranted unless there is evidence of eczema involving 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 area, 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.  Because the Veteran received the triamcinolone ointment rather than the triamcinolone injection, which is systemic, and because the Veteran's follicular eczema does not cover at least 5 percent of his entire body or of an exposed area, the criteria for a compensable rating under DC 7806 were not met from April 13, 2010 to March 26, 2014.

The Veteran was seen by a dermatologist on March 26, 2014 for a follow-up after a punch biopsy where treatment was increased.  He was given another topical cream for monomorphic flesh-colored papules scattered over his lower body and a trial shot of Kenalog, an injectable version of triamcinolone and also a corticosteroid.  In his subsequent follow-up in May 2014, the creams were continued but the trial shot of Kenalog was not.  Because the Veteran's Kenalog treatment was a single injection, and therefore systemic, his disability from March 26, 2014 to March 26, 2015 most closely approximates the criteria for a 10 percent disability rating, meeting the criteria of taking a corticosteroid for a total duration of six weeks or less during the previous 12-month period.  A higher evaluation of 20 percent is not warranted unless 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the previous 12-month period.  As such, a rating higher than 10 percent is not warranted for the Veteran's eczema from March 26, 2014 to October 29, 2014.  

The October 28, 2015 examiner noted that the Veteran took hydroxyzine for his eczema at a constant/near-constant rate over the previous 12 months.  This drug is an antihistamine, which prevents the effects of histamine, an organic compound that is involved in local immune responses.  See http://www.mayoclinic.org/drugs-supplements/hydroxyzine -oral-route/side-effects/drg-20311434?p=1.  Given the definition of systemic therapy in Warren, supra, and VA's Adjudication Manual, hydroxyzine appears to be a type of systemic therapy such as corticosteroids and other immunosuppressive drugs.  As such, because the ratings schedule defines a 60 percent rating as "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period," a 60 percent rating, the maximum schedular rating under DC 7806, is warranted from October 29, 2014, the date on which it is factually ascertainable that constant or near-constant systemic therapy began.  See 38 U.S.C. § 5110(b)(3) ("The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability occurred[.]"); 38 C.F.R. § 3.400(o)(2) (2017) (awarding an increased evaluation for disability compensation as of the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred"); Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (effective date should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined to determine the date that the Veteran's disability manifested).

For the foregoing reasons, the preponderance of the evidence is against an initial compensable rating for eczema from April 13, 2010 to March 26, 2014 and against a rating higher than 10 percent from March 26, 2014 through October 29, 2014 and reasonable doubt has been resolved in the Veteran's favor in granting the maximum schedular rating from October 29, 2014.  As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

The Board has considered the Veteran's claim and decided entitlement based on the evidence.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).





ORDER

Entitlement to an initial compensable rating for eczema from April 13, 2010 to March 26, 2014 is denied.

Entitlement to a rating higher than 10 percent for eczema from March 26, 2014 through October 29, 2014 is denied.
 
Entitlement to a 60 percent rating, the maximum schedular disability rating, for eczema, is granted from October 29, 2014, subject to controlling regulations governing the payment of monetary awards.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs