Citation Nr: 1808035 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-23 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable rating for allergic contact dermatitis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1978 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the case has since been transferred to the Columbia, South Carolina, RO. The Veteran testified before a Decision Review Officer (DRO) in March 2015 and before the undersigned Veterans Law Judge (VLJ) at a Board hearing in November 2017. Transcripts of these hearing are associated with the claims file. FINDING OF FACT Throughout the period on appeal, the Veteran's skin disability has been treated with intermittent systemic therapy in the form of prednisone, a corticosteroid, for less than six weeks during any 12-month period. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for allergic contact dermatitis have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided notice letters to the Veteran in July 2011 and September 2011. The letters notified the Veteran of what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claim. The letters also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The content of the letters complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering the issue on its merits. The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board further finds that all relevant evidence has been obtained, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained, and VA medical records and private medical records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to this claim. The Veteran underwent VA examinations in November 2010 and March 2014, to obtain medical evidence regarding the nature and severity of the disability. The Board finds the VA examinations adequate for adjudication purposes, when combined with information found in VA treatment records and private treatment records. The examinations were performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. The examination reports are accurate and fully descriptive. Opinion is provided as the severity of the disability. As such, the Board finds that the Veteran has been afforded adequate examinations. The Board finds that VA's duty to assist has been met. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. II. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. §§ 3.321(a), 4.1, 4.21. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's allergic contact dermatitis is rated under Diagnostic Code 7806, for dermatitis or eczema. Pursuant to this Diagnostic Code, a 10 percent rating is assigned 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 is affected, or; when intermittent systemic therapy such as corticosteroids or immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected, or where systemic therapy such as corticosteroids or other immunosuppressive drugs is 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 assigned where there more than 40 percent of the entire body or more than 40 percent of exposed areas is affected, or where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Id. Regarding skin disabilities, the U.S. Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), however, subsequently reversed that decision by the Court. Johnson v. Shulkin, 862 F. 3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the Secretary that the Veterans 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 antiinfective 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. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. III. Increased Rating for Allergic Contact Dermatitis The Veteran contends that his skin disability is compensable-even though most examinations in the record have occurred between episodic flare-ups-because it is painful, can cover a large portion of his body if not properly treated, and requires administration of oral prednisone up to five times per year to manage. Diagnostic Code 7806 for Dermatitis or Eczema After careful review of the evidence, the Board finds that a 10 percent rating is warranted under Diagnostic Code 7806 for dermatitis or eczema, because the Veteran requires intermittent systemic therapy with the corticosteroid prednisone for a total duration of less than six-weeks per year. VA treatment records beginning in June 2009 show prescriptions for oral prednisone to treat skin lesions, with dosages for 19 days total in 2009, 4 days in 2010, 12 days in 2011, and 16 days in 2013. Examinations during this period show "an oozing patch on [the Veteran's] right forearm," hyperpigmented skin on the ankles, left wrist, face, and groin, and oozing sores in the groin area, consistent with dermatitis or eczema. (In August 2011, a VA examiner explained that contact dermatitis and eczema are functionally very similar. The Board notes that both dermatitis and eczema are rated under Diagnostic Code 7806.) A VA examination in 2014 showed scarring over most of the Veteran's body. The examiner incorrectly stated that the Veteran's skin condition had been treated with topical medications only, and no systemic medications. Pharmacy records submitted by the Veteran show prescriptions for oral prednisone with dosages totaling 16 days in 2015 and 34 days in 2016. In March 2015, a private treating doctor at South Charlotte Dermatology diagnosed the Veteran with continued episodic flares of seborrheic dermatitis and eczema. Although the Veteran was not experiencing a flare-up at that time, he showed significant hyperpigmentation on his flanks, shins, groin, medial thighs, and axillary skin, totaling more than 40 percent of his skin. Because the record shows that the Veteran requires intermittent systemic treatment with oral prednisone, a corticosteroid, for management of his skin disability, the Board finds that a 10 percent rating is warranted under Diagnostic Code 7806. The next higher rating of 30 percent is not warranted, however. Although 40 percent or more of the Veteran's body is affected when his skin disability is untreated, he testified at the hearing that prednisone is effective treatment that prevents the pustules from spreading over his body. A 30 percent rating is also not warranted because the Veteran does not require six or more weeks of treatment with prednisone per year. He testified that he experiences a maximum of five outbreaks in a year, and that outbreaks are controlled after two or three days of treatment with prednisone. Even if he were to take prednisone for six or seven days per outbreak, as his prescription records show is usual for him, that would not total six weeks in a 12-month period. Based on these facts, the Board finds that a 10 percent rating, but no higher, is warranted under Diagnostic Code 7806 Alternative Diagnostic Codes The Board finds that no higher or alternative rating under a different diagnostic code can be applied. Diagnostic Codes 7800, 7801, and 7802 do not apply because the Veteran does not have burn scars. Diagnostic Codes 7804 and 7805 do not apply because although the Veteran has scarring caused by his skin condition, those scars are not unstable or painful scars, nor do they have any disabling effects that are not contemplated by Diagnostic Code 7806. Finally, the Veteran does not have diagnoses or symptoms that more closely approximate those necessary for a separate rating under Diagnostic Codes 7807 to 7833. ORDER For the period on appeal, a rating of 10 percent for allergic contact dermatitis is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs