Citation Nr: 18153929 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-12 146A DATE: November 29, 2018 ORDER Entitlement to a compensable rating for dermatitis from February 27, 2012, to October 26, 2016 is denied. Entitlement to a rating in excess of 30 percent for dermatitis since October 26, 2016 is denied. REMANDED Entitlement to a total disability rating due to service-connected disabilities (TDIU) prior to January 1, 2017, is remanded. FINDINGS OF FACT 1. From February 27, 2012 to October 26, 2016, the evidence showed that less than 5 percent of the entire body was affected by the Veteran’s skin disability. 2. From February 27, 2012 to October 26, 2016, the evidence showed that the Veteran’s condition required no more than topical therapy treatment during the past 12-month period. 3. Since October 26, 2016 the evidence shows that the Veteran’s skin disability affects 20 to 40 percent of the Veteran’s body area. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for dermatitis from February 27, 2012, to October 26, 2016 have not been met. 38 C.F.R. §§ 3.655, 4.118, Diagnostic Code 7806, 7813 (2017). 2. The criteria for entitlement to a rating in excess of 30 percent for dermatitis since October 26, 2016, have not been met. 38 C.F.R. §§ 3.655, 4.118, Diagnostic Code 7806, 7813 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 5,1979 to October 30, 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Increased Rating The Veteran contends that his disability warrants a higher rating throughout the pendency of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and 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. VA has a duty to acknowledge and 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). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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). 1. Entitlement to a compensable rating for dermatitis from February 27, 2012, to October 26, 2016 The Board notes that the Veteran filed for service connection for a heat rash that was received by VA on February 27, 2012. The Veteran is challenging his initial noncompensable rating. The Veteran’s disability was rated according to Diagnostic Code 7806. The rating criteria effective from October 23, 2008, provide that: Dermatitis or eczema is rated under the criteria under Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. According to Diagnostic Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas; or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating. Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas; or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating. Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. The Board notes that on August 7, 2018, the Department of Veterans Affairs (VA) issued a final rule correcting an error in the 30 percent criteria under the General Rating Formula for the Skin that was added to 38 C.F.R. § 4.118 in a July 2018 final rule. VA published a final rule amending its regulations on skin disabilities on July 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Board notes that VA’s 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 rating criteria effective from August 7, 2018, provide that: Dermatitis or eczema is rated under the criteria under Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. According to Diagnostic Code 7806, a 60 percent disability will be awarded if at least one of the following are present: 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. A 30 percent disability will be awarded if at least one of the following are present: characteristic lesions involving more than 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 10 percent disability will be awarded if at least one of the following are present: 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 A noncompensable rating will be awarded if no more than topical therapy required over the past 12-month period and at least one of the following are present: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. The United States Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under DC 7806. Johnson v. McDonald, 27 Vet. App. 497 (2016). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, reversed the decision by the Court. Johnson v. Shulkin, 2016-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the VA Secretary that 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.” The Federal Circuit went on to explain 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.” 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. As to a current diagnosis, the Board notes that the Veteran’s skin disability has been diagnosed as dermatitis. Turning to the medical evidence at hand, the Veteran attended a VA examination for this issue in October 2012. The Veteran reported he has flares of the condition which causes swelling and blistering of the areas affected (the inside of the thighs, around upper chest at base of neck but not onto neck). Upon examination, the examiner reported that dermatitis affects less than 5 percent of the total body area of the Veteran. The examiner also made no indication that the skin condition affected any exposed areas. In addition, the examiner noted that the condition did not caused any scarring. Lastly, the examiner noted that the Veteran was treated for less than six weeks with systemic corticosteroids or other immunosuppressive medications. In February 2013, the Veteran attended an additional examination for this issue. Upon examination, the examiner noted that the Veteran’s condition does not cause scarring or disfigurement. In addition, the examiner noted that dermatitis affects less than 5 percent of the total body area of the Veteran and it does not affect any exposed areas. Lastly, the examiner noted that the Veteran was treated for less than six weeks with systemic corticosteroids or other immunosuppressive medications. In addition to the VA examinations, the Board has also reviewed the Veteran’s medical history. The Board notes that the Veteran’s medical records do not show symptoms reported in these records that his skin disability is worse than what was reported at his VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Initially, the Board notes that the medical evidence of record only supports consideration of Diagnostic Code 7806; thus, the Board will only use Diagnostic Code 7806 in its analysis. 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. Thus, the topical corticosteroids used to treat the Veteran’s skin condition are not systemic therapy under DC 7806. In sum, the Board finds that the Veteran’s condition has remained consistent throughout this period of the appeal and a rating increase is not warranted. After a review of the record, the Board notes that the Veteran’s symptoms do not meet the criteria set forth for a compensable rating. Specifically, the Board notes that the medical evidence of record showed that the Veteran’s skin condition affected less than 5 percent of the Veteran’s entire body, involved less than 5 percent of the Veteran’s exposed areas, and required no more than topical therapy throughout this period of the appeal. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a compensable rating for dermatitis, from February 27, 2012, to October 26, 2016, must be denied. 2. Entitlement to a rating in excess of 30 percent for dermatitis since October 26, 2016 In October 2016, the Veteran attended an examination for this issue. The examiner noted that the Veteran’s condition required him to take topical corticosteroids for 6 weeks or more, but not constant. In addition, the examiner noted that dermatitis affected 20 to 40 percent of the body and affected 5 percent but less than 20 percent of the exposed areas. In addition to the VA examinations, the Board has also reviewed the Veteran’s medical history. The Board notes that the Veteran’s medical records do not show symptoms reported in these records that his skin disability is worse than what was reported at his VA examination. See Colvin; supra. 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. Thus, the topical corticosteroids used to treat the Veteran’s skin condition are not systemic therapy under DC 7806. In sum, the Board finds that the Veteran’s condition has remained consistent throughout this period of the appeal and a rating increase is not warranted. In addition, the Board notes that the medical evidence of record does not support an increased rating before the Veteran attended his October 2016 VA examination. After a review of the record, the Board notes that the Veteran’s symptoms do not meet the criteria set forth for a rating in excess of 30 percent. Specifically, the Board notes that the medical evidence during this period of the appeal does not show constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period; or, more than 40 percent of the entire body affected; or, more than 40 percent of the exposed areas of the body affected. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 30 percent since October 26, 2016 must be denied. Extra Considerations. The Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. REASONS FOR REMAND 1. Entitlement to a total disability rating due to service connected disabilities (TDIU) prior to January 1, 2017, is remanded. The Board acknowledges that the Veteran’s claim for an increased rating for a skin disability includes a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. The Board notes that the Veteran was awarded a claim for TDIU in January 2017; however, after a review of the record, the Board finds that the claim for TDIU has been raised by the record prior to the Veteran filing a formal claim for unemployability. See Rice v. Shinseki, 22 Vet. App. 447. As such, the Board finds that a remand is required in order to properly develop the Veteran’s claim for TDIU prior to January 1, 2017. The matter is REMANDED for the following action: Take all necessary steps to properly develop and adjudicate the Veteran’s claim for TDIU prior to January 1, 2017. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Counsel