Citation Nr: 18156646 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-53 273 DATE: December 10, 2018 ORDER Entitlement to an initial compensable evaluation for eczema is denied. FINDING OF FACT The Veteran’s service-connected eczema does not cover at least 5 percent of his entire body or the exposed areas affected, and has not required intermittent systemic therapy in the past 12-month period. CONCLUSION OF LAW The criteria for an initial compensable evaluation for the Veteran’s service-connected eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to April 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a February 2017 rating decision that denied service connection for left and right ankle psoriatic arthritis. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOD) is in the process of taking action on this NOD. As such, the Board will not take any further action on that matter at this time, and it will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case (SOC) is issued. Increased Rating for Eczema The Veteran contends that a compensable rating is warranted for his service-connected eczema. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability, and separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s eczema is rated under Diagnostic Code (DC) 7806, which provides the following rating criteria: A noncompensable rating is assigned when the eczema covers less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy has been required during the past 12-month period. A 10 percent rating is warranted when 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 are affected; or, when intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. 38 C.F.R. § 4.118 was recently amended, effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised DC 7806 to state that disabilities evaluated under this DC should be evaluated under the General Rating Formula for the Skin. Therefore, the Board will consider the Veteran’s claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. Under the new criteria, the General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is 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 will be warranted where 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, 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 will be warranted where there is 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 will be warranted where there is 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 further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805). In an October 2014 VA examination, the examiner noted that the Veteran’s skin condition does not cause scarring or disfigurement on the head, face, or neck. There were no systemic manifestations from the skin condition. The examiner also noted that the Veteran experienced dry flaking skin on the soles of both feet, callouses on the pads of his toes, and mild dystrophic toe nails. The Veteran reported that outbreaks of his skin condition were influenced by heat and humidity. During outbreaks, the rash would itch and develop sores and the skin would split and bleed. The most common site of the outbreaks was the toes and balls of the feet. He last had an outbreak about a year before the examination. He indicated the best thing for treatment of the condition was wearing shower shoes. The examiner noted that less than 5 percent of the Veteran’s body overall and none of the exposed areas were affected by the Veteran’s skin condition. The record does not contain evidence that contradicts these findings, and the Veteran has not submitted lay statements indicating his eczema covers more than 5 percent of his body or exposed areas affected. The October 2014 VA examination also noted that the Veteran had not been treated with oral or topical medication or any other medication in the past 12 months for any skin condition. Private treatment records do not reveal findings or reports different from those outlined above. The Board acknowledges that the Veteran has identified several private records that were not addressed in the rating decision on appeal. In particular, the Veteran noted that the rating decision did not address an X-ray evaluation, verification of ongoing treatment, evidence showing chronic pain in both ankles, and evidence showing arthritis in the ankles. However, this evidence is relevant to the separate claim that is currently being addressed by the RO seeking service connection for psoriatic arthritis of the ankles as secondary to the service-connected eczema and is not pertinent to the present eczema rating assignment on appeal. The Board also acknowledges that the Veteran has submitted evidence from March 1971 showing that the Physical Evaluation Board found that he was 30 percent disabled, minus 10 percent for a condition existing prior to entrance. These recommended findings cite a “V.A. Code Number 7813-7806,” which appears to reference the diagnostic code explained above, and state that he is 30 percent disabled. The Veteran contends that this shows that a compensable rating is warranted in this case; however, such an application would not be appropriate. A 30 percent rating may have been appropriate at the time when the Physical Evaluation Board made its determination in March 1971, but the current appeal is assessing the propriety of the rating during the current appeal period, which extends from February 24, 2014, the effective date of the award of service connection for the disability. As such, the findings made in 1971 regarding the severity of the condition at that time provide little to no probative value in determining the appropriate rating for the Veteran’s condition as it currently manifests. As the evidence does not show that the Veteran’s condition more nearly approximates covering at least 5 percent of the entire body or at least 5 percent of exposed areas affected, or requiring intermittent systemic therapy for a total duration of less than 6 weeks over the past 12-month period, the criteria for a higher 10 percent rating under the criteria of DC 7806 effective before and from August 13, 2018, a compensable rating is not warranted. The Board also finds a compensable rating for the Veteran’s skin condition is not warranted under other diagnostic codes as the Veteran has not alleged that he has scarring and physical examination has revealed no scarring. 38 C.F.R. § 4.118, DCs 7800-7805. Therefore, a higher rating is not warranted under DCs 7800 through 7805. Thus, the Board finds that the Veteran’s symptoms most closely approximate a noncompensable rating throughout the appeal period under the pertinent diagnostic criteria. The Board acknowledges that in June 2018 written argument, the Veteran’s representative argued that the October 2014 VA examination was too old to evaluate the Veteran’s condition. A new VA examination is not warranted based merely upon the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, the only allegations the Veteran has made regarding worsening of the condition relate to his claim seeking service connection for psoriatic arthritis, which is a separate matter under appeal. The record does not indicate any worsening of the service-connected skin condition. As such, the Board concludes that remand for a new examination is not necessary. The Veteran’s representative has not raised any other issues with the duty to assist. Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this case, the benefit of the doubt rule is inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, DC 7806. Accordingly, the claim is denied. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel