Citation Nr: 18123761 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 13-07 235 DATE: August 3, 2018 ORDER Prior to September 19, 2017, a rating of 60 percent, but not higher, for prurigo nodularis is granted. Since September 19, 2017, a rating in excess of 60 percent, for prurigo nodularis, is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee is remanded. Entitlement to a rating in excess of 10 percent for right knee meniscal tear and degenerative arthritis prior to March 2, 2017, and a rating in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Prior to September 19, 2017 the Veteran’s prurigo nodularis was treated with near-constant systemic therapy. 2. Since September 19, 2017, the Veteran’s prurigo nodularis, receives the maximum schedular rating under Diagnostic Code 7806. CONCLUSIONS OF LAW 1. Prior to September 19, 2017, the criteria for a rating of 60 percent, but no higher, for prurigo nodularis had been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Codes (DCs) 7899-7806 (2017). 2. Since September 19, 2017, the criteria for a rating in excess of 60 percent for prurigo nodularis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.118, DCs 7899-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to September 1990. This case was previously before the Board in February 2017 when increased rating claims for his left knee, right knee and hearing loss were remanded for further development. His increased rating claim for prurigo nodularis was subsequently remanded for further development in September 2017. The claims are once again before the Board. 1. Entitlement to a rating in excess of 30 percent for prurigo nodularis prior to September 19, 2017, and entitlement to a rating in excess of 60 percent thereafter. Disability evaluations are determined by application of the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The rating schedule has Diagnostic Codes for rating each disability. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation applies if disability more closely approximates that level. 38 C.F.R. § 4.7. The Veteran’s service-connected condition of prurigo nodularis is presently rated at 30 percent prior to September 19, 2017, and at 60 percent since September 19, 2017, by analogy, pursuant to rating provisions under 38 C.F.R. § 4.118, Diagnostic Code 7806, for the evaluation of dermatitis or eczema. Under Diagnostic Code 7806 for dermatitis or eczema, looking just at the relevant parts, a 30 percent rating is assigned where 20 to 40 percent of the entire body or exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Where more than 40 percent of the entire body or 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, a 60 percent rating is warranted. The criteria will be slightly changed by a final rule effective August 13, 2018. 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 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 anti-infective 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. 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. The Veteran underwent a VA examination in February 2011. He reported having multiple nodules on his arms, head, hips, and legs. The Veteran reported that the nodules become scaly and itchy and then he scratches them and they become sores and scab over. He reported his symptoms always being present but increased by heat, humidity and sweating. The VA examiner noted that the Veteran treated his condition with Absorbase, a topical treatment, neither considered a corticosteroid or an immunosuppressive. A physical examination revealed less than 5 percent of exposed areas, and a total body area of 20 to 40% was affected. The Veteran underwent an additional examination in December 2012. The Veteran reported multiple recurrent nodules on his arms, shoulders, hips, and legs that become scaly and itchy. The Veteran stated that his symptoms are always present but they are increased by heat, humidity, and sweating. The Veteran reported using topical medication daily. No scarring or disfigurement of the head, face, or neck was observed. The VA examiner noted that the Veteran had been treated with oral or topical medications in the past 12 months. It was noted that Absorbase topical ointment was applied to the affected areas, as was Lac Hydrin lotion, 12 percent. It was noted that this was used on a constant/near constant basis. A physical examination revealed that his skin disability affects 20 to 40 % of his total body area and 5 to 20% of exposed areas. VA Treatment records have been reviewed during the relevant time frame. Treatment records continue to show similar complaints noted on the VA examinations. Additionally, it was shown that the Veteran had been prescribed hydroxyzine for a period of 2 weeks in February 2013. Moreover, treatment records beginning in 2011 reflect that in addition to using Absorbase, the Veteran was using Clobetasol which is a corticosteroid. The use of Clobetasol continues to be noted in treatment records in 2017, demonstrating its long-term use by the Veteran on his wide-spread skin disability. Under the principles set forth in Johnson, 862 F. 3d 1351, the Board finds that the Veteran’s corticosteroid use (Clobetasol) is considered systemic therapy because it is “treatment pertaining to or affecting the body as a whole.” Because the Veteran took this medication on a constant or near-constant basis for over 12 months, he is entitled to a 60 percent rating under Diagnostic Codes 7899-7806 prior to September 19, 2017. Additionally, in affirming the 60 percent rating is most consistent with the Veteran’s disability, prior to September 19, 2017, the Board has considered various statements from the Veteran essentially attesting that his condition was not accurately reflected at the time of the VA examinations. For the entire period on appeal, the Veteran’s prurigo nodularis has now been assigned a 60 percent rating which is the maximum rating assignable pursuant to the rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806. It is feasible elsewhere under VA’s rating schedule to obtain a rating higher than 60 percent under Diagnostic Code 7800 for scars of the head, face or neck, however, the Veteran is not confirmed to have scars meeting the maximum 80 percent rating under Diagnostic Code 7800 (i.e., with visible or palpable tissue loss and either gross distortion or asymmetry of several features). The Board further finds that referral for consideration of an extraschedular rating is not warranted, as the evidence regarding the Veteran’s prurigo nodularis does not show such an exceptional disability picture that would render the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND The Board remanded the following claims in February 2017: (1) entitlement to an increased rating for degenerative arthritis of the left knee (2) entitlement to an increased rating for right knee meniscal tear and degenerative arthritis and (3) entitlement to an increased rating for bilateral hearing loss. The Remand requested various outstanding treatment records be obtained and additional VA examinations be provided to the Veteran. Although additional treatment records were obtained and he was afforded appropriate VA examinations, no further action was undertaken with respect to these issues. That is, the RO did not readjudicate the claims or promulgate a supplemental statement of the case (SSOC), as had been requested by the Board in its February 2017 Remand. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because there was not substantial compliance with the remand instructions, the Board is compelled to remand the appeal for appropriate adjudicatory consideration of his claims and the promulgation of an SSOC. Id; see also 38 C.F.R. §§ 19.9, 19.31(c) (2017). The matters are REMANDED for the following action: (Continued on the next page)   Readjudicate the Veteran’s claims. If any benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel