Citation Nr: 18140291 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 17-29 872 DATE: October 2, 2018 ORDER Entitlement to a disability rating of 10 percent, but no higher, for service-connected dermatitis, is granted. FINDING OF FACT The Veteran has dermatitis that primarily affects his hands and arms, but has also affected his scalp and back, and the evidence is in relative equipoise that it affects at least 5 percent, but less than 20 percent, of both the entire body and exposed areas of skin. His dermatitis is treated through constant or near-constant topical therapy, with no indications of any systemic or other exceptional or unusual effects. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a disability rating of 10 percent, but no higher, for service-connected dermatitis have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1954 to March 1956. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated March 2016, which denied the Veteran’s claim for a compensable rating for service-connected dermatitis. This appeal has been advanced on the Board’s docket due to the advanced age of the appellant. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c)(1). The Veteran testified before the undersigned Veterans Law Judge during a May 2018 videoconference hearing. A transcript of that proceeding is associated with the claims file. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the May 2017 statement of the case and June 2017 supplemental statement of the case and are not repeated here in full. Neither the Veteran nor his representative raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Increased Rating Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate DCs identify the various disabilities and the criteria for specific ratings. Where there is a question as to which of two ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. During the pendency of the appeal, the rating criteria for evaluating skin conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018); 38 C.F.R. § 4.118, DC 7806. The Veteran’s symptoms are evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran is applied. See 83 Fed. Reg. 32,592, 32,593 (July 13, 2018) (“[F]or this final rule, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”) The rating criteria for dermatitis that were in effect until August 13, 2018 were as follows: • A 0 percent rating is warranted where the Veteran has less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and required no more than topical therapy during the past 12-month period. • A 10 percent rating is warranted where the Veteran has 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 the Veteran required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. • A 30 percent rating is warranted where the Veteran has 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or the Veteran required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. • A 60 percent rating is warranted where the Veteran has more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or the Veteran required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit differentiated between systemic therapy and topical therapy. The Court concluded, under the rating criteria then in effect, that systemic therapy meant “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.” Id. at 1355. In Warren v. McDonald, 28 Vet. App. 194 (2016), the United States Court of Appeals for Veterans Claims held that “systemic therapy” in DC 7806 was not limited to corticosteroids or immunosuppressive drugs, and VA must determine whether a given treatment is “like” a corticosteroid or other immunosuppressive drug in determining whether a given treatment constitutes a systemic therapy. Under the criteria that became effective August 13, 2018, dermatitis is rated under a new General Rating Formula For The Skin, which provides as follows: • A 0 percent rating is warranted where the Veteran required no more than topical therapy over the past 12-month period and has characteristic lesions involving less than 5 percent of the entire body affected, and/or less than 5 percent of exposed areas affected. • A 10 percent rating is warranted where the Veteran has characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or the Veteran required intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs for a total duration of less than 6 weeks over the past 12-month period. • A 30 percent rating is warranted where the Veteran has characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or the Veteran required systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. • A 60 percent rating is warranted where the Veteran has characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or the Veteran required 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. Under the criteria that became effective August 13, 2018, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” 38 C.F.R. § 4.118(a). VA has acknowledged, however, that if topical therapy is required on a large percentage of the body, it could have a systemic effect, a higher rating could be warranted based on the percentage of the body affected, and/or an extraschedular rating may be warranted for exceptional or unusual effect of applying a topical corticosteroid cream. See Revisions to Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32592, 32594 (July 13, 2018); see also Burton v. Wilkie, No. 16-2037 (Vet. App. Sept. 28, 2018). The medical evidence shows the Veteran has dermatitis that primarily affects his hands and arms, but has, at times, also affected his scalp and back. See, e.g., February 2016 VA examination (noting “scaly dry patches on dorsal surface of hands and fingers bilaterally” and “[e]xam today shows the same skin involvement of both right and left hands with evidence of dermatitis”); February 2016 VA treatment record (noting “Asteatosis of arm skin”); September 2017 VA treatment record (noting “Severe hand dermatitis causing loss of dermatoglyphs” and dermatitis of the upper back); April 2018 VA treatment record (noting “focal mild erythema and scaling” of the scalp). The February 2016 and May 2017 VA examiners both determined the total approximate body area and total approximate exposed area affected by the Veteran’s dermatitis were each less than 5%. In making those determinations, the 2016 examiner noted the areas affected as the dorsal surface of hands and fingers bilaterally; however, the 2017 examiner did not identify any of the areas affected. The Board finds the conclusions of 2017 examiner are inadequate for rating purposes because they are not based on any articulated clinical data or other rationale for that examiner’s determinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, although the Board finds the conclusions of the 2016 examiner adequate because the examiner specified the affected areas upon which she based her determinations, the Board notes the Veteran’s treatment records up to that time did not include the subsequent September 2017 and April 2018 medical evidence of dermatitis also affecting the Veteran’s back and scalp. The Board finds the 2016 VA examination report, together with the objective medical evidence of additional areas of the Veteran’s body affected by dermatitis, are sufficient to put the totality of the evidence in relative equipoise that the Veteran’s service-connected dermatitis manifests through characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body. Under both the old and new rating criteria, this would warrant a 10 percent rating under DC 7806, and, as reasonable doubt as to the degree of disability must be resolved in favor of the Veteran, he is entitled to the 10 percent rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board finds the Veteran is not entitled to the next higher rating under either the old or new criteria. First, the evidence shows the Veteran’s dermatitis has been treated with constant or near-constant topical medications, namely pramoxine (a prescription anti-itch medication) and non-prescription anti-itch lotion (Sarna), applied to the sites of his dermatitis. See, e.g., November 2016 lay statement; February 2016 and May 2017 VA examinations; May 2017 VA Form 9 (stating Veteran applies pramoxine to hands and arms before going to bed); September 2017 VA treatment record. The evidence does not show any form of systemic therapy (including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs). The evidence also does not show or indicate that the Veteran’s topical medications are “like” corticosteroids, or show or indicate the existence of actual or potential systemic effects resulting from the topical therapy (i.e., that the topical treatment operates by affecting the body as a whole in treating the Veteran’s skin condition). Nor has the Veteran or his representative contended any of the foregoing. Second, the evidence is not in at least relative equipoise that the Veteran’s dermatitis affects at least 20 percent of his entire body or exposed areas. The Board considered information submitted by the Veteran’s representative in the form of excerpts from a website that purport to establish the percentage of total body area or percentage of exposed skin area a given region of the body comprises, which VA regulations do not prescribe. The Board does not find this information constitutes competent medical evidence because there is no evidence of its provenance or that it has been generally recognized as an accepted medical treatise or authoritative writing. See 38 C.F.R. § 3.159(a)(1). As such, it cannot serve as a basis for estimating the percentage of exposed areas affected. The Board also considered handwritten annotations made by the Veteran’s representative on this information, contending the Veteran is entitled to a 30 percent rating based on total body area and a 60 percent rating based on exposed skin area. The Board does not find these calculations to be competent medical evidence, as they are, in the first instance, based on information that itself is not competent medical evidence. Moreover, the Veteran and his representative, neither of which has established they have medical training, are competent to opine on the clinical significance of the Veteran’s symptoms, i.e., medically diagnose the percentage of his skin affected by dermatitis for purposes of DC 7806. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Finally, the Board also considered an article submitted by the Veteran’s representative in the form of an abstract of a medical article that concludes fingerprint verification failure is a significant problem among patients with severe hand dermatitis, as well as testimony by the Veteran at the May 2018 hearing regarding his historical difficulties with providing fingerprints for employers. The Board finds this evidence shows the Veteran’s dermatitis caused him difficulties, but did not actually ever prevent him from obtaining employment or limit his employment opportunities. Accordingly, the Board finds the evidence does not present an exceptional or unusual disability picture to warrant referral for extra-schedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel