Citation Nr: 18156963 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-44 090 DATE: December 11, 2018 ORDER Entitlement to an increased, compensable rating for service connected tinea versicolor, multiple areas (skin disease) is denied. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s skin disease has affected less than 20 percent of his exposed skin, less than 20 percent of his entire body, and has not required systemic therapy. CONCLUSION OF LAW The criteria for a compensable rating for service connected skin disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.27, 4.118, Diagnostic Code (DC) 7806 (prior to and effective August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1971 to September 1974. This case comes to the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which continued the Veteran’s noncompensable rating for his service connected skin disease. In May 2016, the Veteran filed his notice of disagreement (NOD) with the noncompensable rating, seeking the maximum rating, and in August 2016 was issued a statement of the case (SOC). The Veteran timely perfected his appeal (via VA Form 9) in September 2016. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more nearly approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s skin disease is rated under 38 C.F.R. § 4.118, DC 7806. Recently, VA amended the criteria for rating the skin. Under the former version of DC 7806, applicable to dermatitis or eczema, a 10 percent rating was warranted if 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 were affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period. A 30 percent rating was warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. A 60 percent rating was warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period. Under the revised criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “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.” DC 7806 is rated under the general rating formula for the skin. Under the revised general rating formula, a 10 percent rating is warranted where at least one of the following is 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, 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 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. 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 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). During the Veteran’s most recent VA examination in August 2016, the VA examiner reported a diagnosis of tinea versicolor and that the Veteran treats it with a prescribed topical lotion (selenium sulfide 2.5 percent). This prescription, originally from July 2009, directed the Veteran to apply a small amount topically at bedtime to the tinea versicolor areas and wash off the following morning for six weeks or more, but not constantly. The Veteran stated he has periodic rashes on his skin that appeared when he was in the sun and when he sweats, after which he periodically applies the prescribed lotion. While there were white/pink macules present on the upper torso on the back that are consistent with tinea versicolor, the Veteran’s skin disease does not cause scarring, less than 5 percent of the total body area is affected, and none of the exposed areas (face, neck, hands, etc.) were affected. In a recent case, the Court noted that the Board must determine whether a topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition by deciding how the topical treatment works – not by its contact with the affected location of the condition on the body, but instead in some other way that affects the body more broadly. For example, the Court noted, a topical treatment may affect the body as a whole if it circulates through the bloodstream. Thus, in affecting the body as a whole, it essentially would not matter whether the topical treatment was applied where the condition was located or some other part of the body, as the body in its entirety would be involved in the treatment. Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims LEXIS 1314 (Vet. App. Sep. 28, 2018). Here, the evidence of record does not indicate that the Veteran’s topical treatment, when applied, is absorbed through the bloodstream or otherwise affects the body as a whole. As such, the treatment cannot be considered systemic for rating purposes. The above examination findings reflect that the Veteran’s skin disease as affected less than 5 percent of his entire body, none of his exposed body, and has not required systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12 months, warranting a noncompensable rating. A higher rating under both the old and new criteria would require symptoms more nearly approximating 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. A higher rating could also be warranted for intermittent systemic therapy including but not limited to corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12 month period, but the above evidence reflects that the Veteran has used a topical lotion over a limited portion of his body throughout the appeal period, and this does not constitute systemic therapy under either the old definition of systemic therapy as interpreted by the Federal Circuit in Johnson or the new definition as interpreted by the Court in Burton. Based on the foregoing, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s skin disease for the entire appeal period. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel