Citation Nr: 18143022 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 02-13 334 DATE: October 18, 2018 ORDER Entitlement to an earlier effective date for a 60 percent rating for ichthyosis vulgaris based on a liberalizing law is granted effective August 30, 2001 under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806 (2018). FINDINGS OF FACT 1. From January 25, 2001 to August 30, 2002, the Veteran’s ichthyosis vulgaris disability was not “exceptionally repugnant.” 2. In considering the amendment of DC 7806, effective August 30, 2002, the Board finds that a liberalizing law was implemented, that compensation under DC 7806 was granted, and that the Veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and the year prior to the amendment. CONCLUSION OF LAW 1. The criteria for an earlier effective date based on a liberalizing law is met effective August 30, 2001, but no earlier. 38 U.S.C. §§ 1155, 5107, 5110(g) (2012); 38 C.F.R. 3.114 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1975 to January 1995. The Veteran’s claims have been pending since his initial application in January 2001. Through various decisions by the Board and the United States Court of Appeals for Veterans Claims (Court), the matter was last adjudicated by the Board in a February 2018 Board remand. In that remand, and as a result of a decision by the Court, the only remaining issue was the Veteran’s entitlement to a rating greater than 30 percent for his ichthyosis vulgaris prior to August 30, 2002. In accordance with the directions of the Court, the Veteran’s claim was remanded for further development. This development is now complete. 1. Entitlement to a rating greater than 30 percent for ichthyosis vulgaris The Veteran contends that he should be entitled a rating greater than 30 percent for his service-connected ichthyosis vulgaris condition. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body, the psyche, or system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be combined so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see 38 C.F.R. § 4.14 (recognizing that disability from distinct injuries or diseases may overlap). The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant); 38 C.F.R. § 4.3 (providing that all reasonable doubt regarding the degree of disability will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the pendency of this claim, the applicable rating criteria for the Veteran’s skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002. See 67 Fed. Reg. 49590 (July 31, 2002). Only the version of the schedular criteria that was in effect when the Veteran submitted this claim in January 2001 may be applied prior to August 30, 2002. See id.; see also VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). The current version of the relevant rating criteria is applicable to the claim from August 30, 2002 forward. See id. At the same time, although the current rating criteria may not be applied prior August 30, 2002, this does not prohibit application of the earlier version of the rating criteria to the period on or after the effective date of the current rating criteria if that version would afford a higher rating, since it was still in effect when this claim was submitted. Prior to August 30, 2002, the Veteran’s ichthyosis vulgaris was rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, which pertains to eczema. In this regard, prior to August 2002, there was no diagnostic code specific to ichthyoses. Thus, it was rated by analogy to eczema under DC 7806. See 38 C.F.R. § 4.20 (providing that when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Under the prior version of DC 7806, a 30 percent is assigned when the skin disorder is manifested by exudation or constant itching, extensive lesions or marked disfigurement. 38 C.F.R. § 4.118, DC 7806 (2001). A rating of 50 percent is assigned for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or if the condition is exceptionally repugnant. Id. From August 30, 2002, the Veteran’s ichthyosis vulgaris has been rated under the provisions of 38 C.F.R. § 4.118, DC 7824, which pertains to diseases of keratinization including ichthyosis. Under DC 7284, a rating of 30 percent is assigned when the skin disorder is manifested by either generalized cutaneous involvement or systemic manifestations, with intermittent systemic medication such as immunosuppressive retinoids required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A rating of 60 percent is assigned when there is either generalized cutaneous involvement or systemic manifestations, with constant or near-constant systemic medications such as immunosuppressive retinoids required during the past 12-month period. Id. The rating criteria for eczema were also amended effective August 30, 2002. Current DC 7806 applies to eczema or dermatitis, and provides, in relevant part, that a rating of 30 percent is assigned when 20 to 40 percent of the entire body is affected, or 20 to 40 percent of exposed areas are affected. Alternatively, a 30 percent rating is assigned under DC 7806 when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118. A rating of 60 percent is assigned when more than 40 percent of the entire body is affected, or more than 40 percent of exposed areas is affected. Alternatively, a 60 percent rating is assigned when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Id. The Court has held that, in evaluating skin disorders, the frequency and duration of the outbreaks and the appearance and virulence of them must be addressed. See Bowers v. Derwinski, 2 Vet. App. 675 (1992). In compliance with the Court’s directive, the Board remanded the Veteran’s claim so that a retroactive opinion could be obtained on whether the Veteran’s ichthyosis vulgaris condition was “exceptionally repugnant” from January 25, 2001 to August 30, 2002 under the earlier version of DC 7806. After a review of the medical evidence in the file during that period, the examiner gave the opinion that it is less likely than not that the condition is “exceptionally repugnant.” In support thereof, the examiner noted that while three exams consistently say that the Veteran’s condition covers at least 40% of body, but not his face, the condition was “pretty well controlled”, and had no cracks, fissures, and it looked “healthy”. While the Veteran asserted that his condition became worse in the winter, the exams in October 2001 and February 2003 were no worse than June 2002. Thus, there was no evidence of an exceptionally repugnant condition, even when a flare-up may occur. The Board gives the VA examiner’s opinion great probative weight as it is based on a review of the medical record and provides support for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay opinion that his ichthyosis vulgaris is exceptionally repugnant. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding whether the ichthyosis vulgaris is exceptionally repugnant to be complex in nature because the Court instructed the Board to obtain a medical opinion on the same. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing the level of repugnancy. Moreover, he has offered only conclusory statements on the same. In view of the above, the weight of the evidence is against the claim for an increased evaluation for ichthyosis vulgaris beyond 30 percent, for the period prior to August 30, 2002. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an earlier effective date for ichthyosis vulgaris In the alternative, the Veteran asserts that he should be entitled to an earlier effective date for his ichthyosis vulgaris because the amendment of DC 7806, effective August 30, 2002 is a liberalizing law. The provisions of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 could entitle a Veteran to earlier effective date if a change in the law is one that liberalizes the grant of benefits. Where compensation is awarded or increased pursuant to a liberalizing law, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114(a). Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id. These provisions are applicable to original and reopened claims, as well as claims for increased benefits. Id. If a claim is reviewed on the initiative of VA under this section within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. See 38 C.F.R. § 3.114(a)(1). There are exceptions to this rule, however, which allow for retroactive payments. If the claim is reviewed on the initiative of VA or by request of the Veteran within 1 year from the effective date of the law or VA issue, then the proper effective date is the same date the change of law went into effect. 38 C.F.R. § 3.114 (a)(1). If a claim is reviewed on the initiative of VA or by request of the Veteran more than one year after the effective date of the law, the effective date will be one year prior to the date of administrative review or Veteran request if the Veteran met all of the requirements for eligibility as of the date of the liberalizing law. 38 C.F.R. § 3.114 (a)(2), (3). The Board notes that the Veteran filed his initial claim in January 2001. Since then, the Veteran’s claim has been continuously under review and the Board finds that the Veteran has requested review under all applicable criteria, to include on the basis of a liberalizing law. Thus, the baseline inquiry is satisfied. Next, to determine whether such an earlier effective date provision may apply, the Board must next decide whether the change in the DC constitutes a liberalizing law and whether compensation was awarded pursuant thereto. See Brown v. Nicholson, 21 Vet. App. 290, 295 (2007) (“The plain language of § 5110(g) and § 3.114(a) require two specific findings: A finding that a liberalizing law or administrative issue was implemented, as well as a determination that the ultimate grant of benefits was ‘pursuant to’ such a favorable change in the law.”); see also Routen v. West, 142 F.3d 1434, 1441 (Fed. Cir. 1998) (“If a new law provides for benefits not previously available, even though grounded on some, but not all of the same facts adjudicated under an earlier law, a new cause of action is created along with a new entitlement to a remedy.”) Thus, the first prong is whether the Board concludes that the Veteran was granted benefits pursuant to a liberalizing law, which it so finds. The Board granted the Veteran a 60 percent rating under DC 7806, rather than the medically correct code of 7826 that would have awarded a lower benefit. Therefore, the first prong of the test is met. The second prong is whether the Veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114. An increased rating can be awarded one-year prior to its effective date; thus, the issue is not whether the Veteran is entitled an earlier 60 percent rating from January 25, 2001, but rather is he entitled to a 60 percent rating effective August 30, 2002, one year prior to the effective date of the amendment to DC 7806. To aid in the adjudication of this claim, a retroactive opinion was obtained. The September 2018 VA opinion states that it is more likely than not that the Veteran’s skin condition affected more than 40 percent of his body. In support thereof, the examiner reviewed the medical evidence at the time and concluded that the three examinations consistently find that 70 percent of the Veteran’s body was affected. (Continued on the next page)   Therefore, the Board concludes that the Veteran met all eligibility criteria for the amendment to DC 7806 for the year prior to August 30, 2002, back to August 30, 2001. This represents a full grant of benefits under these provisions and there is no doubt to resolve. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock