Citation Nr: 18153917 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-14 490 DATE: November 28, 2018 ORDER Entitlement to a rating in excess of 10 percent for service connected pustular eruption of feet and hands is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the appeal period, the Veteran’s service connected pustular eruption of feet and hands has affected less than 5 percent of his body with no exposed body area affected and without systemic treatment. 2. The Veteran’s service connected pustular eruption of feet and hands do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for service connected pustular eruption of feet and hands have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7899-7813 (2018). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1955 to July 1975. As the development directed in an August 2018 remand has been accomplished, the appeal has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 10 percent for service connected pustular eruption of feet and hands Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his service connected pustular eruption of feet and hands is more severe than his current disability rating reflects. He is currently rated as 10 percent disabling under Diagnostic Code 7899-7813. Diagnostic Code 7813 provides compensation for service-connected dermatophytoses, including of the body (tinea corporis), head (tinea capitis), feet (tinea pedis), beard area (tinea barbae), nails (tinea unguium), and inguinal area (jock itch, tinea cruris). 38 C.F.R. § 4.118. Such disorders are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Id. Since the Veteran’s pustular eruption of the feet and hands is more consistent with a skin disorder than a scar, the Board will assess the Veteran’s symptomatology under Diagnostic Code 7806. During the pendency of the appeal, as it pertains to the Veteran’s pustular eruption, the Schedule for Rating Disabilities that addresses diagnostic codes 7801, 7802, 7805, and 7806 has been amended, which went into effect on August 13, 2018. 83 Fed. Reg. 32592 (July 13, 2018). Accordingly, both versions of the ratings schedule are applicable to this claim. Under the previous criteria, a 0 percent rating is appropriate where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected and no more than topical therapy was required during the past 12-month period. Id. A 10 percent rating is appropriate where: 1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 30 percent rating is appropriate where: 1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 2) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent rating is appropriate where: 1) more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or 2) constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. Under the amended criteria, disabilities rated under 38 C.F.R. § 4.118, Diagnostic Code 7806, is evaluated under the General Rating Formula for Skin. A zero percent evaluation is available when no more than topical therapy required over the past 12-month period and 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 10 percent rating is warranted when there is 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, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. Id. A 30 percent rating is warranted where at least one of the following is present: 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. Id. A 60 percent rating is warranted 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Id. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the 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.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the revised criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). A January 2014 VA examination diagnosed pustular eruption of the bilateral hands and bilateral feet. The examiner noted the Veteran’s use of topical corticosteroids, specifically triamcinolone, for a duration of six weeks or more but not constant. No other treatment, topical or systemic, was noted. The examiner classified the Veteran’s skin condition as dermatitis and measured the total body area affected as less than 5 percent with no exposed body area recorded. The Veteran’s skin condition did not cause any noted scarring or disfigurement. Finally, the examiner opined the Veteran’s skin disability did not impact his ability to work. An April 2018 VA examination report reflects the Veteran’s complaints of eruptions with itching and blister formation. The Veteran reported use of the topical corticosteroids flucinon 0.05% and betamethasone dipropiontate 0.05% with a constant to near constant use duration. No systemic treatments were noted. The examiner found the Veteran’s pustular eruptions manifested as scaly, flat, white patches on his posterior and anterior feet. No postular eruptions were noted on the hands or any other body area, and there were no related scars. Total body area affected measured less than 5 percent with no exposed body area recorded. Finally, the examiner opined the Veteran’s skin disability did not impact his ability to work. Medical treatment records do not address the severity of the Veteran’s skin condition. After review of the evidence of record, the Board finds that for the entire appeal period a 10 percent disability rating is warranted for the Veteran’s service connected skin disability. His skin condition has affected less than 5 percent of his body with no exposed body area affected, and there is no medical evidence that the affected area has grown during the appeal period. Regarding systemic therapy, the corticosteroids the Veteran was prescribed were topical corticosteroids. As stated above, the Federal Circuit found that the topical use of corticosteroids did not constitute systemic therapy under DC 7806 in most cases. Johnson, supra. The Federal Circuit pointed out that 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 as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Here, there is no evidence that the Veteran was applying the topical corticosteroids to his entire body; instead, the evidence suggests that the Veteran was only applying the topical corticosteroids to the affected areas (his feet). Thus, the topical corticosteroids used to treat the Veteran’s skin condition are not systemic therapy under DC 7806. As the evidence of record does not demonstrate that the Veteran has characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed area or use of systemic therapy, the Veteran’s skin condition has more closely approximated a 10 percent rating during the appeal period. The Board has considered the applicability of other diagnostic codes and finds that no other codes apply to this case. Further, at no point during the applicable rating period have the criteria for ratings greater than those discussed above been met or approximated. The Board has also considered the benefit of the doubt doctrine; however, it does not apply because the evidence preponderates against finding that a rating greater than that discussed above is warranted. 38 U.S.C. § 5107 (b). Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to total disability rating based on individual unemployability due to service connected disabilities (TDIU) Pursuant to 38 C.F.R. § 4.16 (a), a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. In a January 2014 statement, the Veteran asserted that his service connected pustular eruptions of the hands and feet prevent him from seeking employment. As an increased rating claim for such disability is currently on appeal, the current claim for a TDIU rating is limited only to the context of whether his pustular eruptions preclude him from obtaining or maintaining a substantially gainful occupation. See Rice, 22 Vet. App. at 447. For the appeal period, the Veteran’s service connected disabilities included sebaceous cyst of the left shoulder evaluated as noncompensable, left varicocele evaluated as noncompensable, hemorrhoids evaluated as noncompensable, left calcaneal spur evaluated as noncompensable, pustular eruption of feet and hands evaluated as 10 percent disabling, duodenal ulcer evaluated as 10 percent disabling, osteoarthritis of the back with kyphosis and slight scoliosis evaluated as 10 percent disabling, and bilateral hearing loss evaluated as noncompensable prior to April 2, 2018 and as 50 percent disabling since April 2, 2018. As such, the Veteran did not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16 (a) for the appeal period. Even so, the Board may consider an extra-schedular TDIU if the Veteran’s service connected disability, while not reaching the threshold criteria, nonetheless rendered him unemployable. However, the Board finds it is not factually ascertainable that the Veteran’s service connected disability rendered him unable to secure and follow a substantially gainful occupation. Specifically, the evidence of record reflects that his pustular eruption of hands and feet disability has not impacted his ability to work, as supported by the January 2014 and April 2018 VA examiners’ reports. (Continued on the next page)   Consequently, the Board finds that it is not factually ascertainable that the Veteran’s service connected pustular eruptions of the hands and feet rendered him unable to secure or follow a substantially gainful occupation, and an award of TDIU is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to a TDIU. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel