Citation Nr: 18145460 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 11-08 433 DATE: October 30, 2018 ORDER Entitlement to a rating higher than 60 percent for folliculitis, including cysts, prior to October 2, 2009, is denied. Entitlement to a 10 percent disability rating for folliculitis, including cysts, is granted effective October 2, 2009. FINDING OF FACT The evidence indicates folliculitis, including cysts, affected at least 5 percent but less than 20 percent of the entire body or exposed areas. CONCLUSIONS OF LAW 1. Prior to October 2, 2009, the criteria for a rating in excess of 60 percent for folliculitis, including cysts, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7800-7806. 2. Effective October 2, 2009, the criteria for a 10 percent rating, and no higher, for folliculitis, including cysts, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7800-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to July 1994, to include service in the Southwest Asia theater of operations. The record reflects that when the Veteran filed the current claim for an increased rating for service-connected folliculitis in June 2009, the condition was rated 60 percent disabling. A March 2010 rating decision decreased the Veteran’s rating from 60 percent to a noncompensable rating, effective October 2, 2009. At the time of the reduction, the Veteran was in receipt of a total disability rating based on individual unemployability (TDIU) and there was no change in compensation paid. As such, the issue has not been phrased as whether the reduction was proper. In May 2016 and August 2017, the Board remanded the issue on appeal for additional development, which has been completed. It is worthwhile to note that the Veteran is in receipt of a TDIU from August 13, 2004 to June 19, 2013, and he has been granted a 100 percent disability evaluation from the VA, effective June 19, 2013. The Veteran may wish to consider this fact prior to filing or appealing any additional claims. In any event, the Board will address fully the claim the Veteran has submitted. Entitlement to a staged rating in excess of 60 percent for folliculitis, including cysts, prior to October 2, 2009, and a compensable rating for the period thereafter The Veteran asserts that he is entitled to higher disability ratings for his service-connected folliculitis, including cysts. In his March 2011 the Veteran reported that he was being treated at VA for constant outbreaks of sores on his scalp and across his chest, neck, arms, shoulder, back, and legs. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently rated as 60 percent disabling prior to October 2, 2009, and as noncompensably thereafter, under Diagnostic Code Diagnostic Code 7806. Under Diagnostic Code 7806 (dermatitis or eczema), a 10 percent evaluation is assigned where there is involvement of 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 evaluation requires involvement of 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 assigned with involvement of 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. The Court of Appeals for Veterans Claims, in a July 2017 decision, held that topical use of corticosteroids constitutes systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The Federal Circuit, however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the Secretary that the Veterans Court erred when it “read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of' ‘systemic therapy.’” The Federal Circuit noted that Diagnostic Code 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” The Federal Circuit went on to explain 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.” Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. A disability under Diagnostic Code 7806 may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7802, 7803, 7804, and 7805) depending on the predominant disability. 38 C.F.R. § 4.118. Diagnostic Code 7804 contemplates scars that are unstable or painful. A 10 percent disability rating is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. A higher 20 percent rating is assigned with three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7805 provides that other scars (including linear scars), not otherwise rated under Diagnostic Codes 7800-7804, in addition to the other effects of scars which are otherwise rated under Diagnostic Codes 7800-7804, are also to be rated based on any disabling effects not provided for by Diagnostic Codes 7800-7804. This includes, where applicable, Diagnostic Codes pertaining to limitation of function. 38 C.F.R. § 4.118. On VA examination in October 2009 the examiner noted rare intermittent episodes of folliculitis with cysts. The condition did not require daily treatment. Examination showed no evidence of folliculitis or cysts. Minimally hypopigmented posterior neck involving less than 5 percent of the total body was noted. The VA examiner also reported no treatment for a skin condition it the past twelve months. VA treatment records after 2010 show that the Veteran was prescribed anti-bacterial lotions, topical creams and antibiotics for treatment of his skin condition. There was no evidence of treatment with corticosteroids. In February 2010 he was seen for an itchy rash on his face, ongoing for three weeks. The assessment was contact dermatitis that cleared with topical medications. A dermatology treatment note in July 2010 showed that the Veteran’s chest, back and face were clear. He had mild dry skin eczema and was advised to apply moisturizing lotion after bathing. A March 2011 clinical treatment note recorded nontender lesions and lipoma, 9 different papules, on the posterior neck. On Gulf War general examination in December 2011 the skin was evaluated as normal. VA treatment notes in 2013 showed that the Veteran was under treatment for chronic dermatitis with a prescription corticosteroid cream. The condition was noted to have improved with treatment. In March 2015 a clinician noted the olecranon area of the extensor surface of the right elbow has a 1 cm skin and subcutaneous nodular quality with overlying skin findings that suggested resolved pustules. It was non-tender. The left elbow olecranon area was a single tiny spot that looked like a resolved pustule. Treatment notes after 2016 generally failed to document any significant skin disorder, other than ashy rash near the elbows in 2018. Generally examination of the skin was normal, without incisions, abrasions, lesions, rashes, bruises, ulcers, scars, open wounds or skin breaks. On VA examination in August 2018, the Veteran complained of intermittent episodes of pruritus of the posterior scalp associated with folliculitis. He denied any current treatment by a dermatologist, although he used constant or near-constant topical treatment for folliculitis. The examiner noted that the Veteran was diagnosed with folliculitis in or about 1991, controlled with applications regularly of Cleocin T solution and a topical steroid (Synalar BID or a substitute), as well as Capitrol shampoo, twice weekly. The Veteran had not undergone treatments or procedures, other than systemic or topical medications, in the past 12 months for any skin condition. The examiner found that the Veteran currently suffered from chronic folliculitis that affected 5 to 20 percent of total body and exposed body area. The examiner also noted a history of lipoma of the posterior scalp possibly associated with a sebaceous cyst. The cyst measured approximately 5 cm. It was located in the posterior nuchal area. The cyst was drained some several times in the past, but the Veteran retained a rather large mass at the site. The condition affected less than 5 percent of total body and exposed body area. The examiner also noted a horizontal, linear scar on posterior scalp that was approximately 4.5 cm long by 0.5 cm width. The condition was last treated more than 10 years earlier and was noted to have resolved. There were no debilitating or non-debilitating episodes urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis, in the past 12 months. Initially, the Board finds that the predominant disability associated with the Veteran’s skin condition consists of folliculitis manifested by rashes as described above. The evidence does not show that it is predominantly manifested by scarring or by disfigurement. While the VA examiner in 2018 noted a history of lipoma, resolved, with a residual scar, the scar was not painful or unstable, and the total area was less than 39 square cm. Diagnostic Codes 7800 through 7805 would not result in a compensable, much less, a higher rating. The Board also notes that because disabilities under Diagnostic Code 7806 are to be rated either as dermatitis or eczema “or” based on disfigurement of the head, face, or neck, “or” scars, separate ratings for scars or disfigurement may not be assigned per the express provisions of Diagnostic Code 7806. See 38 C.F.R. § 4.118. As already discussed, the predominant disability in this case are the rashes compensated under Diagnostic Code 7806. Next, as noted, prior to October 2, 2009, the Veteran’s folliculitis was rated as 60 percent disabling. Diagnostic Code 7806 precludes a schedular evaluation in excess of a 60 percent rating for the Veteran’s folliculitis. As the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 7806, a higher rating under this Diagnostic Code is not applicable. The Veteran has competently described chronic recurring episodes of skin pruritus, and VA treatment records after October 2, 2009, reflect that the Veteran would occasionally be treated for skin rashes and develop pustules that were treated with topical medications. Additionally, the VA examiner in August 2018 found that the service-connected chronic folliculitis affected 5 to 20 percent of total body and exposed body area. In consideration of the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that an increased 10 percent rating for folliculitis, with cysts, effective October 2, 2009, is warranted under Diagnostic Code 7806. A rating higher than 10 percent under Diagnostic Code 7806 for folliculitis is not warranted. At no time after October 2, 2009, was 20 to 40 percent of the entire body covered by folliculitis, or 20 to 40 percent of exposed body areas. Also, while the 2018 VA examination report noted constant/near-constant use of topical medications to treat folliculitis, the Board finds that this use did not equate to systemic therapy. Topical medication application was limited to specific areas of the body, namely, and was not administered on a large enough scale such that it affected the Veteran’s body as a whole. See Johnson, 862 F.3d at 1351. In sum, prior to October 2, 2009, a rating higher than 60 percent is for folliculitis, with cysts, is denied. Resolving all doubt in favor of the Veteran, the Board finds that as of October 2, 2009, an evaluation of 10 percent under Diagnostic Code 7806 is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana