Citation Nr: 18161219 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-03 128 DATE: December 31, 2018 ORDER Entitlement to a compensable rating for eczematous dermatitis is denied. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran’s eczema covered at least five percent, but less than 20 percent, of the entire body or at least five percent, but less than 20 percent, of exposed areas. Nor is there any evidence that the Veteran has been prescribed or required to use systemic therapy such as corticosteroids or other immunosuppressive drugs during the previous 12-month period. 2. At no time during the appeal period has the Veteran’s eczema been manifested by characteristic lesions involving more than five percent of the entire body or more than five percent of exposed areas affected; or intermittent systemic therapy including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs over the past 12-month period. CONCLUSION OF LAW The criteria for a compensable rating for eczematous dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, DC 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from February 1998 to August 2003. Entitlement to a compensable rating for eczematous dermatitis 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 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). 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 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely 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 (2017). 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 (2017). As to claims of entitlement to an increased evaluation, as opposed to a higher initial evaluation, “the relevant temporal focus... is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, at 509 (2007). This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C. § 5110 (b)(2) (2012). The Veteran’s service-connected eczematous dermatitis has been assigned a noncompensable rating under Diagnostic Code 7806, effective August 18, 2003. The Veteran filed her most recent claim seeking a higher rating for her service-connected eczematous dermatitis in January 2016. In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the pre-August 2018 rating criteria, Diagnostic Code 7806 provided for a 0 percent rating where there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned where there is involvement of 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. Under the post-August 2018 rating criteria, a 0 percent rating is assigned when there is no more than topical therapy required over the past 12-month period and 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 assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month. A 30 percent rating is assigned for 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, (psoralen with long-wave ultraviolet-A light (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 assigned 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. 38 C.F.R. § 4.118 (August 13, 2018). Prior to the August 2018 amendments, the Federal Circuit distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Nevertheless, a topical corticosteroid could be administered to a large enough scale to affect the body, as a whole, thus meeting the definition of “systemic therapy. Id. With the implementation of the August 2018 amendments, systemic therapy is now defined as 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. 38 C.F.R. § 4.118 (August 13, 2018). In August 2015, the Veteran underwent a VA examination for skin conditions. The Veteran complained of sensitive skin mostly on her legs and reported using hydrocortisone on her elbows, left palm and legs for itching. At the time, the examiner noted that eczema affected less than five percent of the Veteran’s total body area, and less than five percent of exposed areas. The Veteran’s eczema had been treated with topical corticosteroids for less than 6 weeks in the preceding 12 months. Furthermore, the condition did not cause any scars or disfigurement. The examiner described the eczema as affecting a 1x2 centimeter area on the Veteran’s left hand. The examiner stated that the skin condition on the Veteran’s lower extremities was likely post-shaving irritation which was well controlled with laser hair removal, moisturizing creams and hydrocortisone. The examiner indicated that the Veteran was not taking any oral medication. The Veteran underwent a new VA examination in February 2016. Again, the examiner noted that eczema affected less than five percent of total body area, and less than five percent of exposed area. The examiner indicated that the Veteran’s condition was treated with constant or near constant use of topical corticosteroids. In this regard, although the Veteran had been prescribed topical corticosteroids her treatment covered too small an area of her body to be considered systemic. See Johnson v. Shulkin, supra. Both VA exams are consistent with other evidence of record, including treatment records and lay photos provided by the Veteran, and are thus highly probative. February 2016 treatment records from the Veteran’s private dermatologist, Dr. D. S., indicate that the Veteran’s eczema affected her arms, hands and legs but do not indicate to what extent these areas were affected. Dr. D. S. recommended that the Veteran continue use of topical corticosteroids and begin an antihistamine regimen to control itching. It appears from the records that the Veteran continued this regimen for a brief period. A visit note from June 2016 states that the Veteran should continue treatment with Triamcinolone cream but does not mention antihistamine treatment. Further, as these oral medications were prescribed to control a symptom rather than to treat the underlying skin disorder, they did not constitute a systemic therapy that is like or similar to corticosteroids or other immunosuppressive drugs. See Warren v. McDonald, 28 Vet. App. 194, 198 (2016). The Board assigns significant probative value to these records given the treatment period covered and the consistency with other evidence of record. The VA treatment records are largely comprised of email conversations between the Veteran and her primary care physician or dermatologist regarding her claim. Throughout these records, the Veteran competently reported that her eczema affected both legs in their entirety, and some of her arms, face and hands. The treatment records confirm that the Veteran received laser hair removal on her legs to avoid exacerbation of her eczema caused by shaving. In June 2017, the Veteran’s primary physician indicated that the Veteran’s skin condition was stable but noted patchy areas of inflammation over legs with no further explanation. The Board finds these records to be of limited probative value as they generally consist of inquiries about how to navigate the claims process and not the Veteran’s condition. The most probative lay evidence consists of eight photographs provided by the Veteran. The photographs confirm her statements that her eczema affected her hands as well as small areas on her arms and legs consistent with the VA exams, and private treatment records. However, contrary to the Veteran’s statements, they do not show that the Veteran’s eczema affected both legs in their entirety. The evidence of record therefore shows that throughout the period on appeal, the Veteran’s eczema has affected less than five percent of her body, and less than five percent of exposed areas. The Veteran has not been on any systemic treatment for eczema, and her condition does not cause any scars or disfigurement. With respect to the post-August 2018 criteria, the evidence also does not reflect characteristic lesions involving at least five percent of the entire body or at least five percent of exposed areas affected; or intermittent systemic therapy over the past 12-month period. Based on the evidence of record, the Board finds that a compensable rating is not warranted under Diagnostic Code 7806 under either the pre-August 2018 or post-August 2018 rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017 and August 13, 2018). Accordingly, the condition meets the standards for a noncompensable rating, and no higher, throughout the claim period. As the preponderance of the evidence is against a finding of additional symptoms, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel