Citation Nr: 18151563 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-15 152 DATE: November 20, 2018 ORDER Restoration of a 60 percent disability rating for service-connected dermatitis is granted, effective October 1, 2013. FINDING OF FACT At the time of the reduction, the evidence failed to show a material improvement in the Veteran’s dermatitis, or that any material improvement was reasonably certain to be maintained under the ordinary condition of life. CONCLUSION OF LAW The July 2013 reduction of the disability rating for dermatitis was not proper; restoration of the 60 percent rating is warranted. 38 U.S.C. §§ 1155, 5112, 7104 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from August 1986 to August 1991. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). 1. Whether the reduction from 60 percent to 10 percent disabling for service-connected dermatitis is proper When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the Agency of Original Jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. VA is also required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i). For this reason, the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply to this appeal of a reduced rating. The Board finds that VA has complied with the notification and due process requirements applicable to the reduction of a disability evaluation for dermatitis. Specifically, a March 2013 rating decision and notification letter informed the Veteran of the proposed reduction, the evidence, and reasons and bases for the proposed reduction. The letter also informed the Veteran of the right to submit additional evidence or argument and to present such evidence or argument at a personal hearing, pursuant to 38 C.F.R. § 3.105(e), (i). Following the submission of additional evidence, another rating decision proposing a rating reduction, effective October 1, 2013, was issued in July 2013. Historically, the 60 percent rating for the Veteran’s dermatitis was assigned in a November 2012 rating decision, effective from January 9, 2012. This 60 percent rating was first reduced to 10 percent, effective October 1, 2013, in the July 2013 rating decision. The 60 percent rating was therefore in effect for less than five years. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are not applicable. 38 C.F.R. § 3.344(c). The Board finds that the procedural requirements for a disability rating reduction have been met. Accordingly, the remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record. The Veteran’s dermatitis was evaluated under Diagnostic Code (DC) 7806. 38 C.F.R § 4.118. Under DC 7806, a 60 percent rating, the maximum schedular rating for dermatitis, is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period. The March 2013 rating decision proposing a rating reduction states: VA examination dated September 2012 [shows that the Veteran’s dermatitis] required constant or near-constant intake of Hydroxyzine pamoate, a systemic antihistamine, in the past 12 months to relieve the symptoms of this skin disease. Antihistamine, a medicine taken by mouth, is a systemic medication. Since the Rating Schedule uses the words, "systemic therapy such as", the definition of systemic therapy is not limited to corticosteroid and immunosuppressive as these are only examples of systemic therapy… however, Compensation and Pension policy has dictated in January 2013 (in VSCM Conference Call of January 2013) that “systemic therapy” has to be characterized as corticosteroids or other immunosuppressive drugs. Since Hydroxyzine pamoate is not a corticosteroid or an immunosuppressive drug, a 60 percent on the basis of its constant or near constant intake cannot be assigned. However, what the rating decision does not discuss is that the September 2012 VA examination also notes is that the Veteran required the constant/near-constant topical corticosteroids. The Board notes the language of DC 7806 was at issue previously before the United States Court of Appeals for Veterans Claims (Court) and before the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Johnson v. McDonald, 27 Vet. App. 497 (2016). At issue on appeal was whether the criteria for a 60 percent rating under DC 7806, which requires “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs,” is inclusive of topical corticosteroids, such as those prescribed to the Veteran. The Court determined “systemic therapy such as corticosteroids” as unambiguously encompassing any topical application of corticosteroids for treating a skin condition, in addition to a therapy that impacts a patient’s entire body system, such as when a drug is administered orally or parenterally. The Court found that the “topical therapy” identified in the noncompensable rating criteria under DC 7806 necessarily referred to “non-corticosteroid” topical treatment. In reversing the Court’s decision, the Federal Circuit found the Court erred when it read DC 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 DC 7806 draws a clear distinction between “systemic therapy” and “topical therapy” as the operative terms of the diagnostic code. It explained 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. The Federal Circuit indicated 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The September 2012 VA skin diseases examination notes that in 2005, the Veteran developed itchiness all over his body, specifically on his arms and legs, recurring every two to three days. The examination also noted infectious skin conditions of the waist, and left and right flanks. In addition, following notification of the proposed rating reduction, the Veteran submitted color photos of his service-connected dermatitis showing that the skin disease affects large areas of his body. In July 2013, the Veteran completed another VA skin diseases examination. At examination, the Veteran was diagnosed with recurrent dermatitis affecting his hands, forearms, abdomen, flanks, lower back, and anterior tibial areas. The Veteran reported flare-up three to four times yearly. Based on the above discussed medical evidence, and resolving all doubt in favor of the Veteran, the Board finds that at the time of the proposed rating reduction, the Veteran’s dermatitis required constant/near-constant use of topical corticosteroids as systemic therapy. Accordingly, the Veteran is entitled to a 60 percent disability rating for dermatitis. 38 C.F.R. 4.118, DC 7806. (Continued on the next page)   The Board finds that no improvement of the Veteran’s dermatitis has actually occurred. Restoration of the Veteran’s 60 percent disability rating for dermatitis, effective October 1, 2013, is warranted. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel