Citation Nr: 18151828 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-23 600 DATE: November 20, 2018 ORDER The rating reduction from 60 percent to noncompensable for dermatitis with dyshidrotic eczema, bilateral hands (hereinafter dermatitis) effective December 1, 2013 was improper, and the 60 percent rating is restored. FINDINGS OF FACT 1. At the time of the December 2013 reduction, the 60 percent rating for dermatitis had been in effect for less than five years, and resulted in a decreased combined disability rating. 2. At the time of the September 2013 rating decision effectuating the rating reduction, the evidence of record did not demonstrate sustained material improvement of the dermatitis. CONCLUSION OF LAW The reduction in rating from 60 percent to noncompensable for dermatitis, effective December 1, 2013, was not proper and restoration is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.118, Diagnostic Code 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1998 to January 2000. In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. A rating reduction is the result of a course of action taken by VA and not a claim by the Veteran. The regulation governing rating reductions, 38 C.F.R. § 3.105(e), contains its own notice provisions and procedures. In this case, the Board is restoring the 60 percent disability rating for dermatitis, effective December 1, 2013, the date the reduction was implemented. As such, any discussion as to compliance with the procedural requirements of 38 C.F.R. § 3.105(e) is rendered moot. Turning to whether the reduction was proper, the Board notes that at the time of the reduction, effective December 1, 2013, the 60 percent rating had been in effect for a period of less than five years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344(c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret 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 the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on the Department of Veterans Affairs (VA) to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran’s skin condition is rated under Diagnostic Code (DC) 7899-7806. The disability is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. Notably, the regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. See 73 Fed. Reg. 32, 592 (July 13, 2018). Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria from the effective date of the new rating criteria forward, and whatever criteria is more favorable to the Veteran will be applied. Under the rating criteria in effect prior to August 13, 2018, a noncompensable rating is warranted when less than 5 percent of the entire body or exposed areas are affected; and, no more than topical therapy is required during the past 12-month period. A 60 percent rating, the highest available, is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected or where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118. 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 noncompensable rating is assigned when no more than topical therapy is required over the past 12-month period and with at least one of the following; characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118(a) now indicates that systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under DC 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. See also Burton v. Wilkie, No. 16-2037 – Vet. App. – (September 28, 2018) (finding that the Federal Circuit in Johnson did not mean to limit the “factual circumstances” by which topical treatment may become a systemic therapy under DC 7806 to only situations involving large scale topical application). Turning to the evidence, the Veteran had been receiving a noncompensable rating for dermatitis since January 2000. In August 2010, she filed a claim for an increased rating. In a September 2010 statement in support of claim, she indicated she still had outbreaks of a “skin rash” on both hands. She described small itchy bumps that were filled with fluid and indicated using a prescription cream. In October 2010, the Veteran underwent a VA examination. She indicated increased irritation caused by her intermittent skin condition. She reported using triamcinolone cream, defined in the examination report as a corticosteroid, as needed during eruptions of the rash which was noted to cause burning and itching. Examination findings showed that dermatitis and eczema covered 50 percent of her hands and fingers and 10 percent of her entire body. In a June 2011 rating decision, the Regional Office (RO) increased the rating for dermatitis from noncompensable to 60 percent based on evidence of dermatitis involving more than 40 percent of exposed areas and use of corticosteroid treatment. It was indicated that a future examination would be scheduled. A routine follow-up examination was scheduled in October 2012. Thereafter, in a January 2013 rating decision, the RO proposed to reduce the rating for dermatitis to noncompensable based on the Veteran’s failure to report for the VA reexamination without good cause. In a January 2013 statement in support of claim, the Veteran indicated she had not received notice of the examination and requested reevaluation. In April 2013, the Veteran underwent another VA examination. She explained that she continued to use triamcinolone cream. She indicated that multiple small blisters that itched and were painful would occur during break outs along with swelling of her hands. These breakouts continued to occur once a month and might last one to two weeks. The examiner noted the Veteran did not have a break out at the time of her visit and therefore did not indicate the total body area or the area of exposed area covered by dermatitis in the examination report. In a September 2013 rating decision, the RO reduced the rating for dermatitis to noncompensable based on the finding at the April 2013 VA examination that the Veteran’s condition was asymptomatic. The RO explained that triamcinolone was no more than topical therapy and that corticosteroids applied topically were not considered systemic as required for a 60 percent rating. In a September 2013 statement in support of claim, the Veteran indicated that although she did not have an outbreak at the April 2013 VA examination, her condition had not changed and she continued to use triamcinolone cream on a regular basis. VA treatment records dated around the time of the reduction indicate continued prescription of triamcinolone to be used every day as needed. In March 2018, the Veteran testified at a hearing before the Board of Veterans’ Appeals (Board). She indicated she continued to have monthly flare-ups of her skin condition which had not improved. She stated that when flare-ups occurred she could not wear rings or gloves and her hands were swollen and painful. She continued to use the same prescription cream she had for years to treat her condition. Congress has provided that a veteran’s disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Based on the above, the evidence does not support a finding that overall improvement of dermatitis has occurred. The Veteran still has episodic flare-ups and similar complaints to those she had in 2010 when her rating was increased. She continues to have monthly break outs requiring continued use of the same corticosteroid cream as she had been using both before and after the rating increase. The Board recognizes that the use of triamcinolone cream does not does not appear to operate by affecting the body as a whole in treating the Veteran’s skin condition. See Burton, 16-2037, slip op., at 6. However, a determination as to whether triamcinolone use is systemic is not relevant to the question of whether at the time of the rating reduction, the Veteran’s skin condition had improved. Based on careful consideration of the record, the Board cannot conclude that the weight of the evidence shows a material improvement in the dermatitis that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. 413. Accordingly, the Board finds that the rating reduction was improper and that the Veteran is entitled to restoration of the 60 percent rating for dermatitis, effective the date of the reduction, December 1, 2013. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel