Citation Nr: 18147513 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-11 572 DATE: November 5, 2018 ORDER New and material evidence having been received, the previously denied claim for service connection for a back disability is reopened. Entitlement to service connection for a back disability, to include muscle strain, is granted. Entitlement to a 60 percent disability rating, but no higher, for dermatitis is granted. FINDINGS OF FACT 1. In January 1987, the RO denied service connection for back pain, finding that the VA examination was negative for residuals of a muscle strain. 2. The evidence added to the record since the January 1987 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a back disability. 3. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates the Veteran’s back disability, diagnosed as back strain and lumbago, was incurred during active service. 4. The Veteran's dermatitis is, at worst, productive of symptoms involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected. CONCLUSIONS OF LAW 1. The January 1987 RO decision that denied service connection for a back disability is final. 38 U.S.C. § 7105. 2. New and material evidence has been presented to reopen the claim of service connection for a back disability. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.156(a). 3. The criteria for the establishment of service connection for a back disability, diagnosed as back strain and lumbago, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a 60 percent rating, but no higher, for dermatitis are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes (DCs) 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to May 1986. In a March 2015 substantive appeal via a VA Form 9, the Veteran requested a hearing before the Board; however, in a statement received in February 2016, he withdrew such request. 38 C.F.R. § 20.702(e). 1. Entitlement to service connection for a back disability, to include muscle strain Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board concludes that the Veteran has a current diagnosis of back strain and lumbago that is related to treatment for back pain and muscle strain in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The probative medical evidence or record reflects that the Veteran has been diagnosed with a back disability, namely back strain and lumbago. See April 2012 VA examination. Service treatment records (STRs) reflect that he was treated on several occasions for back problems, including: in April 1976 for right-sided, low back pain; in April 1977 for diagnosed low back pain with muscle spasms and in July 1977 on two occasions for back pain, diagnosed as muscle spasm and muscle strain of the back. Additionally, the December 1983 Report of Medical History reflects a reported history of recurrent back pain. In an October 1986 VA examination, within five months of the Veteran’s separation from active service, the Veteran complained of back pain and was diagnosed with discomfort of the right lower subcostal area, posterior, thereby indicating right-sided low back discomfort. Although the April 2012 VA examiner found it was less likely than not that the Veteran’s back disability was related to the muscle strain during his active service, this opinion did not consider the Veteran’s lay statements and failed to consider the reported history of recurrent back pain in the December 1983 Report of Medical History and the October 1986 VA examination noting the Veteran’s complaint of back pain or accompanying diagnosis of discomfort of the right lower subcostal area, posterior. Thus, this opinion is inadequate and is afforded no probative value. In the April 2012 VA examination, the Veteran also reported that he currently had pain on the right side of his back that began in the same area while in active service, which had improved since, but recurred again about seven years earlier. In his January 2012 claim, the Veteran reported his back disability began in June 1974, during active service, and in the November 2012 notice of disagreement (NOD), the Veteran reported his back disability incurred and was manifested during his active service. The Veteran is competent to report that his back pain began during his active service and that symptoms continued since his active service, and these reports are credible. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed back strain and lumbago was incurred during his active service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for a back disability, diagnosed as back strain and lumbago. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a compensable disability rating for dermatitis Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's dermatitis is rated under 38 C.F.R. § 4.118, DC 7899-7806. Hyphenated diagnostic codes are used when a rating requires the use of additional rating criteria to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.71a. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. 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. Under the rating criteria in effect prior to August 13, 2018, DC 7806, a 10 percent disability rating is assigned where there is 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 rating is assigned for 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 for 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. Under the rating criteria effective August 13, 2018, DC 7806 is to be rated under the General Rating Formula for the Skin. Under this Formula, a 10 percent rating is assigned for at least one of the following: 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 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 6 weeks over the past 12-month period. A 30 percent rating is assigned with at least one of the following: 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 past 12-month period. A 60 percent rating is assigned with at least one of the following: 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 required over the past 12-month period. The General Rating Formula for the Skin also provides that the disability may be rated as disfigurement of the head, face, or neck (DC 7800), or scars (DCs 7801-7805), depending on the predominant disability. Additionally, in Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit recently found that some applications of topical corticosteroids may constitute systemic therapy under Diagnostic Code 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. The probative medical evidence of record reflects that the Veteran's dermatitis was, at worst, productive of symptoms involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected. The April 2012 VA examination found none of the total body area or exposed areas were affected by dermatitis and the April 2014 VA examination found less than five percent of the total body area and none of the exposed areas were affected by the Veteran’s eczema. The Board observes that it appears that neither the April 2012 VA examiner nor the April 2014 VA examiner reviewed the private medical records demonstrating continual treatment for the Veteran’s skin disability. The April 2012 VA examination noted the only records reviewed included STRs and the October 1986 VA examination, and the April 2014 VA examination noted that the claims file was not requested. The private medical evidence, however, including private treatment records from within a year of the claim for increase to March 2014, demonstrates the Veteran was treated for dermatitis on the hands, arms, legs and back. In a March 2014 letter, a private physician reported that the Veteran’s symptoms had progressively worsened over the past few years. She stated that previous topical treatments had become less effective, including emollients, super-potent topical steroids and multiple courses of systemic steroids such as intra-muscular Kenalog from October 2011 to September 2013. The private physician reported that, on numerous occasions in the past three years, the Veteran required topical or oral antibiotics to treat secondary impetiginization. She stated that, due to the extent of the Veteran’s symptoms, which were recalcitrant to topical and systemic steroid treatment, he was referred to her for narrow-band phototherapy. On the first occasion she examined the Veteran in November 2013, the private physician reported that he had too numerous to count nummular plaques on the trunk and extremities, as well as multiple nummular plaques with painful fissures on the hands, noting greater than 40 percent of the body was affected. She stated his symptoms were relatively well-controlled and treatment included barrier repair with cleaners and emollients, super-potent topical steroids and narrow band UVB phototherapy two to three times a week. She expected that continued phototherapy would be required to maintain symptom control. Thus, resolving all doubt in favor of the Veteran, his dermatitis more nearly approximates the 60 percent evaluation under DC 7806. See 38 C.F.R. § 4.118, DC 7806. The Board notes that this is the maximum evaluation assignable under DC 7806. As the predominant disability is dermatitis and not disfigurement of the head, face, or neck, a higher disability under DC 7800 is not warranted. See id. The Board has considered the lay statements of record regarding the severity of his dermatitis and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Veteran’s dermatitis warrants a 60 percent disability rating under DC 7806. 38 C.F.R. §§ 4.3, 4.7, 4.118; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saira Spicknall, Counsel