Citation Nr: 18145867 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-21 603A DATE: October 30, 2018 ORDER Entitlement to service connection for status post hysterectomy is granted. Entitlement to service connection for a scar, secondary to hysterectomy is granted. Entitlement to an initial compensable rating for eczema, prior to July 18, 2017, and in excess of 10 percent from July 18, 2017 is denied. FINDINGS OF FACT 1. The evidence of record is at least in relative equipoise that the conditions leading to the Veteran’s hysterectomy were causally related to service. 2. The Veteran’s abdominal scar is proximately due to a service-connected hysterectomy. 3. Prior to July 18, 2017, the preponderance of the evidence is against a finding that the Veteran’s eczema affected at least five percent of either total body or exposed areas; or that eczema was treated with systemic therapy. 4. Since July 18, 2017, the preponderance of the evidence is against a finding that the Veteran’s eczema has affected at least 20 percent of either total body or exposed areas; or that eczema has been treated with systemic therapy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for status post hysterectomy have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a scar, secondary to service-connected hysterectomy have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2017). 3. Prior to July 18, 2017, the criteria for entitlement to an initial compensable rating for eczema have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7806 (2017). 4. From July 18, 2017, the criteria for entitlement to a rating in excess of 10 percent for eczema have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1983 to December 1987. This case comes on appeal of November 2011 and February 2012 rating decisions. The Board previously remanded these claims in May 2015 to afford the Veteran new medical examinations and opinions. The Board once again remanded the claims in June 2017 to afford these examinations after it was determined that the Veteran had provided valid reasons for missing the examinations and had made reasonable attempts to reschedule them. The Board also notes that, subsequent to the June 2017 remand, the agency of original jurisdiction (AOJ) readjudicated the claim for an increased rating for eczema and, by a March 2018 rating decision, awarded a rating of 10 percent, effective July 18, 2017. This represents a partial grant of benefits sought, therefore the claim remains on appeal. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Service connection will also be granted for a disability which is proximately due to or the result of a service connected disease or injury. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected as well. 38 C.F.R. § 3.310. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for status post hysterectomy The Veteran underwent a total abdominal hysterectomy (TAH) in November 2007. The first criterion of service connection is therefore satisfied. At issue is whether the hysterectomy was caused by or incurred in service. The Veteran’s service treatment records demonstrate that in July 1987 she underwent a Cold Knife Cone (CKC) procedure to remove abnormal cervical cells after a pap smear revealed severe cervical dysplasia. Per the Veteran, she was not provided with follow-up pap smears or given instructions on the need for follow-up. Service treatment records do not show additional pap smears, to include upon separation from service. The record indicates that the Veteran did not have follow-up evaluations until 2007. In May 2007, she underwent a pap smear that revealed abnormal results. Specifically, the cervical and vaginal cellular material showed epithelial cell abnormality of high grade squamous intraepithelial lesion (HSIL). The examiner noted that severe dysplasia was present. As a result, in June 2007 the Veteran underwent a colposcopy for further examination. The colposcopy revealed ectocervical mucosa with chronic inflammation and koilocytotic changes consistent with human papillomavirus (HPV) cytopathic effect. The endocervical tissue contained squamous cell carcinoma. The lesion identified in May 2007 was high grade carcinoma with poorly differentiated and basaloid cells. The Veteran later underwent a new CKC that showed no invasive cancer, however uterine fibroids were present and the margins of cervical resection were still positive for severe dysplasia. The Veteran’s gynecologist, Dr. H.M., recommended a hysterectomy. As noted, the Veteran underwent a TAH in November 2007. The pre-operative diagnosis was cervical intraepithelial neoplasia (CIN III) as well as dysmenorrhea with uterine fibroids. The post-operative diagnosis was unchanged. After filing the present claim, the Veteran visited Dr. H.M. to discuss the chronology and history of the cervical dysplasia. In a June 2011 note, Dr. H.M. reported that it was more likely than not that the dysplasia the Veteran had in 2007 was related to that which was treated in service, due to the nature of the HPV virus, and that “more stringent surveillance and follow up may have prevented the subsequent severe dysplasia/carcinoma which was treated in 2007.” In association with the claim, the AOJ scheduled the Veteran for a VA examination in November 2011. There, the examiner opined that it was less likely than not that the hysterectomy was causally related to service. By way of rationale, the examiner explained that the November 2007 TAH was due to uterine fibroids and that uterine fibroids would not have been caused by the in-service abnormal pap smear. Notably, the examiner did not address the diagnosed CIN III, cervical dysplasia, or Dr. H.M.’s discussion of the progress of HPV. Accordingly, the Board remanded the claim for a new examination and opinion. In July 2017 the Veteran underwent a new VA examination. Once again, the examiner opined that the TAH was not caused by service by explaining that uterine fibroids are not caused by cervical dysplasia. Despite the instructions for examination, the examiner’s opinion continued to ignore the pre-surgery diagnosis of CIN III and cervical dysplasia in 2007 and Dr. H.M.’s discussion of the progress of HPV. In this case, Dr. H.M. provided a positive nexus opinion with supportive rationale in June 2011. The AOJ obtained a subsequent negative opinion in November 2011 based on considerations other than those noted by Dr. H.M. To reconcile the two opinions, the Board sought clarification. To date, all attempts to obtain a comprehensive clarifying medical opinion through further development have been to no avail. Given the complexity of the medical issue, and the futility of VA’s attempts to obtain clarification through development, the Board believes that another remand for a new examination and/or opinion would cause an undue burden on VA without any additional benefit flowing to the Veteran. The Board accordingly finds that the evidence of record both for and against the claim is at the very least in relative equipoise. Resolving all doubt in the Veteran’s favor, the benefit sought on appeal is granted. 2. Entitlement to service connection for a scar, secondary to hysterectomy As noted in the Veteran’s November 2011 and July 2017 VA examinations, as well as numerous times throughout the Veteran’s medical record, the Veteran has an abdominal scar secondary to the November 2007 hysterectomy surgery. Service connection for this scar was wholly dependent on the question of service connection for the hysterectomy itself. In light of the Board’s award of service connection above for the hysterectomy, service connection is granted for the scar as well on a secondary basis. 38 C.F.R. § 3.310. 3. Entitlement to an initial compensable rating for eczema, prior to July 18, 2017, and in excess of 10 percent from July 18, 2017 Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 evaluation. 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 the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). The Veteran’s service-connected eczema of the hands is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that, pursuant to a change in 38 C.F.R. § 4.118, the rating criteria for Diagnostic Code 7806 changed, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Although the new rating criteria of Diagnostic Code 7806 apply to all claims filed after August 13, 2018, the regulation does not limit the effective date of the new Diagnostic Code. Therefore, for all claims pending as of August 13, 2018, the Board shall apply whichever version of the rating criteria is more favorable to the Veteran. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under the prior rating criteria for Diagnostic Code 7806, a noncompensable rating is assigned when less than five percent of the body, or less than five percent of exposed areas are affected, and no more than topical therapy is required during the prior 12-month period. To warrant a rating of 10 percent, at least five percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas must be affected; or, the condition must require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the prior 12-month period. To warrant a rating of 30 percent, 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas must be affected, or, the condition must require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the prior 12-month period. To warrant a rating of 60 percent, more than 40 percent of the entire body or more than 40 percent of exposed areas must be affected, or, the condition must require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the prior 12-month period. Eczema may also be rated under the Diagnostic Codes for scars if the condition causes scarring or disfigurement. Under the new rating criteria, Diagnostic Code 7806 refers eczema to be rated under the General Rating Formula for the Skin (“General Formula”). Under the General Formula, a noncompensable rating is assigned when no more than topical therapy has been required over the prior 12-month period and there are either characteristic lesions involving less than five percent of the entire body affected; or characteristic lesions involving less than five percent of exposed areas affected. A rating of 10 percent is assigned when there are characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than six weeks over the prior 12-month period. A rating of 30 percent is assigned for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the prior 12-month period. A rating of 60 percent is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs over the prior 12-month period. Like with the old criteria for Diagnostic Code 7806, under the General Formula, eczema may also be rated as disfigurement of the head, face, or neck, or as scars, depending on the predominant disability. Under both versions of the rating criteria, the disability rating for eczema, therefore, depends on the total percentage of the body affected, percentage of exposed areas affected, and the type of therapy used to treat the condition. The record demonstrates that the Veteran has a diagnosis of eczema of the hand that began in service. In July 2011, the Veteran underwent a VA examination for skin conditions. At that time, the Veteran did not have a noticeable skin condition on her hands, but noted that the condition usually became worse in the fall and winter and was exacerbated by coming into contact with bleach or with anything acidic, to include acidic foods. The condition was confined to her hands and she used triamcinolone cream daily on her hands during periods of outbreak. The examiner reported that the treatment was topical, noting that triamcinolone was a steroid cream but was a topical steroid cream with no side effects. Based on this examination, the AOJ assigned a noncompensable rating. Since at the time of the examination the Veteran was not experiencing eczema, the condition did not affect at least five percent of her body or five percent of exposed areas. There was no evidence to indicate that at least five percent was affected, even at times of outbreak. Furthermore, treatment for the condition was limited to topical therapy. The Veteran underwent a new VA examination in July 2017. At that time, the Veteran reported that the cream she had been given to treat her eczema no longer worked very well. There were no prescribed medications—either topical or systemic—at that time, however the condition was occurring on both her hands and her neck. The examiner reported that the condition affected less than five percent of total body area, but affected between five and 20 percent of exposed area. Based on the July 2017 examination, the AOJ granted an increased rating of 10 percent for eczema, effective the date of the examination. The Board notes that this rating accurately reflects the extent of the Veteran’s disability at the time of the examination. As the percentage of affected or exposed body area was less than 20 percent, and as the Veteran was not being treated with either topical or systemic therapy, a higher rating was not warranted. Further, although the July 2017 examination demonstrated that eczema affected the Veteran’s neck, a higher rating was not warranted under Diagnostic Code 7800 for disfigurement of the neck. A rating in excess of 10 percent under Diagnostic Code 7800 requires either visible palpable tissue loss or at least two characteristics of disfigurement, neither of which is applicable in this case. Although the Veteran’s medical record makes numerous references to the ongoing condition of eczema, there is nothing in the record to indicate that eczema affected at least five percent of the Veteran’s body or exposed areas prior to July 18, 2017. Likewise, there is no indication in the record that eczema has affected at least 20 percent of the Veteran’s body or exposed areas from July 18, 2017 onward. Although the Board recognizes the Veteran’s statements that her occupation as a nurse required her to wear gloves and wash her hands frequently, thereby exacerbating the condition, there is no evidence that these circumstances caused the condition to spread to other areas of the body, thereby warranting an increased rating. Furthermore, the Veteran currently does not receive either topical or systemic treatment for eczema and the record demonstrates that, at most, treatment for eczema has been treated with a topical corticosteroid therapy. The Board is aware that the Federal Circuit has noted that VA regulations draw a clear distinction between “systemic therapy” and “topical therapy” as operative terms; and 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. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Granted, the Federal Circuit acknowledged that 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 as a whole. However, the Federal Circuit emphasized this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Here, there is no indication in the record that triamcinolone cream was used other than locally to treat eczema outbreaks as they arose, and the Veteran has not alleged that she used systemic therapy, to include oral medications to treat eczema. (Continued on Next Page) Accordingly, under both Diagnostic Code 7806 and the General Formula, no more than a noncompensable (zero percent) rating is warranted prior to July 18, 2017, and no more than a 10 percent rating is warranted from July 18, 2017. As the preponderance of the evidence is against a finding of additional symptoms, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel