Citation Nr: 1818189 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 11-14 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an increased rating for service-connected seborrheic dermatitis, secondary to immunosuppressive therapy required by liver transplant, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active duty service from December 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In August 2017, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's service-connected seborrheic dermatitis, secondary to immunosuppressive therapy required by liver transplant, is shown to have been productive of symptoms that include itching, redness, cracking and blistering, but not symptoms affecting more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for service-connected seborrheic dermatitis, secondary to immunosuppressive therapy required by liver transplant, are not shown to have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7806, 7899 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to a disability evaluation in excess of 30 percent for his service-connected seborrheic dermatitis, secondary to immunosuppressive therapy required by liver transplant. Essentially, he contends that he has used prescription medication to treat his condition for greater than one year, without sustained improvement. In his appeal (VA Form 9), and associated submissions, the Veteran asserted that his prescriptions include Tacrolimus and Triamcinolone Acetonide ointments which he used between March 2009 and February 2011, and that he is shown to have the need for "constant or near-constant systemic therapy" as required for a 60 percent rating (discussed infra). He attached photocopies of labels of his medications in support, dated in April 2009 and April 2010. See also Veteran's statement, received in February 2018. In February 2018, the Veteran's representative argued that the Veteran requires constant or near-constant immunosuppressive retinoids, that he is shown to have four or more debilitating episodes of urticaria despite ongoing immunosuppressive therapy, and that "as he is on immunosuppressive treatment for his liver transplant, additional immunosuppressive therapy would be redundant." A 60 percent rating was requested. With regard to the history of the disability in issue, in 1987, the Veteran underwent a liver transplant. A May 1997 VA examination report notes a history of seborrheic dermatitis since that operation, with a severe facial rash. On examination, the Veteran had mild erythema over several areas of the face including the cheeks and areas adjacent to his nose. The diagnosis was seborrheic dermatitis. The examiner stated that this condition is well known to be exacerbated or brought on by immunosuppressive therapy including steroids and other medications. An October 2000 VA examination report notes poorly-controlled seborrheic dermatitis, that has been treated with different types of creams, ointments and lotions, including steroid preparations, and different types of anti-fungal and anti-yeast preparations. None of the medications controlled the eruptions. The diagnoses were seborrheic dermatitis, tinea versicolor, and tinea cruris. See 38 C.F.R. § 4.1 (2017). In April 1993, the Board granted service connection for hepatitis, and cirrhosis of the liver. In September 1993, the RO effectuated the Board's decision. In January 1998, granted service connection for seborrheic dermatitis as secondary to service-connected hepatitis, and cirrhosis of the liver, evaluated as 10 percent disabling. See 38 C.F.R. § 3.310 (2017). In September 2002, the RO increased the Veteran's rating for seborrheic dermatitis to 30 percent. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C. § 7105(c). In March 2010, the Veteran filed his claim for an increased rating. In July 2010, the RO denied the claim. The Veteran has appealed. The RO has evaluated the Veteran's skin disorder under 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7899-7806. See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that a skin disorder is the service-connected disorder, and it is rated as if the residual condition is dermatitis or eczema under DC 7806. Under Diagnostic Code 7806, 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, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. In Johnson v. McDonald, 27 Vet. App. 494, 502 (2016) the Court found that the language of Diagnostic Code 7806 is unambiguous: "the diagnostic code explicitly mentions corticosteroids as an example of 'systemic therapy' and does not further distinguish between different types of corticosteroid application." The Court found that the "topical therapy" identified in the noncompensable rating criteria necessarily referred to "non-corticosteroid" topical treatment. See also Warren v. McDonald, 28 Vet. App. 194, 197 (2016) (holding that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs). The Secretary appealed the Court's decision, and in Johnson v. Shulkin, 862 F.3d 1351 (2017), the Federal Circuit reversed the Court's decision. The Federal Circuit held that 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 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. The medical evidence includes VA progress notes, which show that the Veteran has taken a number of medications for skin symptoms, to include Ammonium Lactate, Benzoyl Peroxide, Clobetasol, Clotramazole, Desonide, Fluocinonide, Hydrophilic ointment, Hydroxyzine, Ketoconazole, Tacrolimus, and Triamcinolone. He was noted to have a history that includes eczema, pruritus, and seborrheic dermatitis. See also VA outpatient medications list, dated in January 2018; My health-e-vet medications and supplements summary, dated in September 2017. Private treatment records, dated in April 2010, show treatment for a rash on the left hand, with use of Ketoconazole cream. A VA examination report, dated in February 2011, shows that the examiner noted that the Veteran's claims file was unavailable at the time. The Veteran's condition was described as constant, with symptoms such as dryness, scaliness, itching, and a roughened texture of the skin. The diagnoses were dermatitis, and eczema of the hands. The examiner reported that the Veteran treated his condition with a topical corticosteroid for greater than 6 weeks. The examiner also reported that the exposed area affected by his condition was less than 5 percent, along with less than 5 percent of his total body area. A VA disability benefits questionnaire (DBQ), dated in September 2017, shows that the examiner indicated that the Veteran's VA e-folder (VBMS or Virtual VA) had been reviewed. The Veteran was noted to have a history of seborrheic dermatitis as of 1988. He reported that his skin condition had gotten progressively worse, with current redness, itching, multiple blistering, dryness, cracking of skin, and raised red bumps that look like hives. The DBQ notes the following: there was no scarring or disfigurement, or benign or malignant skin neoplasms. There were no systemic manifestations of skin disease. In the past 12 months, the Veteran has been treated for seborrheic dermatitis with constant or near-constant use of: antihistamines (hydroxyzine 25 milligrams), immunosuppressive retinoids (Benzoyl Peroxide 5% Gel), other oral medications (Tacrolimus 0.1% topical ointment), topical corticosteroids (Clobetasol 0.05% ointment, Fluocinonide 0.05% ointment, Desonide 0.05% cream, and Triamcinolone 0.1% ointment), and other topical medications (Clotrimazole 1% topical cream, Ammonium Lactate 12% lotion). There was no treatment or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. In the past 12 months, the Veteran had four or more debilitating episodes due to urticaria, which occurred despite ongoing immunosuppressive therapy. In the past 12 months, there had not been any non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran's ability to work was impacted to the extent that he has constant distraction from itching while performing job duties. He can perform light physical and sedentary activities. About 5 percent of the Veteran's body was affected, with most of the rash on his posterior neck region. The examiner was requested to state whether, since March 2009, the Veteran had used any medication that was equivalent to systemic therapy involving corticosteroids or other immunosuppressive drugs. In response, the examiner concluded that the Veteran's medications used to treat his skin condition did not involve systemic corticosteroids. The examiner explained that the Veteran's records had been reviewed, and that all of the listed medications include a systemic corticosteroid. The examiner further noted that the Veteran is on an immunosuppressive for a liver transplant. The Board finds that a rating in excess of 30 percent is not warranted. There is no evidence of record indicating that at least 40 percent of the Veteran's body or at least 40 percent of exposed areas were affected by his service-connected condition. There is no evidence to show that he required constant or near-constant systemic therapy or immunosuppressive drugs for treatment of his skin disorder. In this regard, to the extent that the Veteran is shown to have used ammonium lactate, Benzoyl peroxide, Clotrimazole, Hydrophilic (Aquafor), and Ketoconazole, these are for dry skin, used as a topical anti-fungal medication, or an antihistamine. They are not shown to be corticosteroids or immunosuppressive drugs. With regard to Clobetasol propriate, Desonide, Fluocinonide, Tacrolimus, and Triamcinolone acetonide, VA progress notes state that in each case, the Veteran was to apply a small amount ("sparingly") to the affected area as directed. Therefore they are not shown to constitute systemic therapy, i.e., treatment pertaining to or affecting the body as a whole. Johnson. In this regard, the September 2017 VA opinion is considered highly probative evidence that none of the medications taken by the Veteran show that he has required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and as it is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran is on an immunosuppressive for a liver transplant, this is related to the treatment for a another, distinct service-connected disability for which the Veteran is already being compensated. Therefore, it may not be used to establish the criteria for a rating in excess of 30 percent under DC 7806. See 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1994); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the criteria for a rating in excess of 30 percent under DC 7806 are not shown to have been met, the preponderance of the evidence is against the claim, and the claim must be denied. The Board has considered the Veteran's statements that he should be entitled to an increased rating. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his skin symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an increased rating. However, disability ratings are assigned by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability in issue is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. In deciding the Veteran's claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased ratings for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the time the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the claimed disability, such that an increased rating is warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the disability in issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. The Veteran has been afforded two examinations. In August 2017, the Board remanded this claim. The Board directed that any outstanding, relevant treatment records be obtained. Additional VA treatment records were subsequently obtained. The Board further directed that the Veteran be scheduled for a VA examination to determine the nature and severity of his seborrheic dermatitis, to include an opinion as whether the Veteran's use of any oral medications in treating seborrheic dermatitis since March 2009, was equivalent to systemic therapy involving corticosteroids or other immunosuppressive drugs, and the percentage of the body affected by seborrheic dermatitis. In September 2017, this was done. Based on the foregoing, the Board finds that VA has met all duties to the Veteran. If there was any defect in VA's actions to meet its duties to the Veteran, such defect could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER A rating in excess of 30 percent for service-connected seborrheic dermatitis, secondary to immunosuppressive therapy required by liver transplant, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs