Citation Nr: 19124178 Decision Date: 04/02/19 Archive Date: 03/30/19 DOCKET NO. 16-40 574 DATE: April 2, 2019 ORDER The claim of entitlement to an evaluation in excess of 30 percent, for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 (2012), for skin thinning, delayed healing, and hyperlipidemia (hereinafter skin condition) is denied. FINDINGS OF FACT 1. The VA schedular ratings for skin conditions changed effective August 13, 2018, and the Veteran’s Diagnostic Code (DC) under 38 C.F.R. § 4.118, DC 7821 (2018) was also affected. 2. The Veteran’s skin condition was rated under Diagnostic Code (DC) 7821, and as of August 13, 2018, the DC criteria were adjusted to use the General Rating Formula for the Skin along with other DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. 3. The claim of the Veteran spans both the pre-and post-August 13, 2018, versions of the DC and both versions are applicable to the Veteran’s skin condition claim. 4. The Veteran’s skin condition throughout the period on appeal manifested as 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, as indicated in the pre-August 13, 2018, DC. 5. The Veteran’s skin condition throughout the period on appeal manifested as 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 (psoralen (methoxasalen) plus ultraviolet light of A wavelength (treatment)), or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period, as indicated in the post-August 13, 2018, DC. CONCLUSION OF LAW The criteria to establish an evaluation in excess of 30 percent, for entitlement to compensation benefits under the provisions of 38 U.S.C. 1151, for a skin condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, DC 7821 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from March 1972 to June 1973. The Veteran was awarded the National Defense Service Medal. This matter is before the Board of Veteran’s Appeals (Board) from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted the Veteran an evaluation of 10 percent disabling and a June 2016 Statement of the Case (SOC) from the Decision Review Officer in Lincoln, Nebraska which granted the Veteran an evaluation of 30 percent disabling. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in St. Petersburg, Florida, in August 2018. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board notes the submission of the Veteran’s Application for Increased Compensation Based on Unemployability in April 2016 and his testimony in the August 2018 hearing. However, there is no indication that the Veteran contended that he is unable to work due to his skin condition, which is the only issue presently before the Board. The Board further notes that the Veteran submitted a claim in August 2018 for an increased rating for his service-connected adrenal insufficiency as a result of steroid treatment that was partially granted in the rating decision in October 2018. However, no Notice of Disagreement (NOD) has been received from the Veteran. The Board recognizes that the Veteran’s appeal period of one-year from the rating decision of October 2018 has not passed. Entitlement to an evaluation in excess of 30 percent, for entitlement to compensation benefits under the provisions of 38 U.S.C. 1151, for skin thinning, delayed healing, and hyperlipidemia The Veteran contends that he is entitled to an increased rating in excess of 30 percent for his skin condition. The Veteran specifically contends that he is entitled to a 100 percent rating for his skin condition. Procedurally, the Veteran filed a claim under 38 U.S.C. § 1151 in April 2009 due to his steroid treatment by the VA for his non-service connected lymphoma. This claim was initially denied in a July 2009 rating decision. The Veteran appealed this decision to the Board, and the Board remanded the issue for further development in April 2014. A rating decision was issued in July 2014 which granted the Veteran compensation benefits for adrenal insufficiency as a result of steroid treatment under 38 U.S.C. § 1151, at 0 percent disabling, effective April 22, 2009. In a December 2014 rating decision, the RO granted entitlement to compensation for the Veteran’s skin condition also under 38 U.S.C. § 1151, at 10 percent disabling effective April 22, 2009. The Veteran filed a timely NOD. In the SOC issued in June 2016, the Veteran’s skin condition rating was increased to 30 percent disabling, effective April 22, 2009. This is the issue on appeal before the Board. The Veteran’s was initially compensated for his skin condition in December 2014, effective April 2009. The DCs for skin conditions pre-August 13, 2018, apply to the Veteran’s claim from the date of claim April 2009 until August 12, 2018, and the post-August 13, 2018, DCs for skin conditions apply to the Veteran’s claim from August 13, 2018, to present. Skin Condition Pre-August 13, 2018, under DC 7821 The pre-August 13, 2018, rating of 30 percent under DC 7821, which the Veteran is already compensated for, requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. See 38 C.F.R. § 4.118. The 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Id. The Board notes that 60 percent is the highest disability rating under the pre-August 13, 2018, DC 7821. The Veteran is already compensated at a 30 percent rating effective April 2009, as of June 2016. The Board will address below why the preponderance of the evidence is against compensating the Veteran at 60 percent for the period on appeal up to August 12, 2018. Under the pre-August 13, 2018, amendments the Veteran was not receiving topical nor systemic treatment for his skin condition, as discussed below. Skin Condition Post August 13, 2018, under DC 7821 The changes to the DCs for skin conditions post-August 13, 2018, created a General Rating Formula for Skin and required that certain skin conditions and disabilities be rated using that formula. The Veteran’s skin condition under DC 7821 is one of those conditions. Due to the Veteran’s claim being received and pending with VA during the time of the amendments made to the rating criteria for skin conditions the Board is required to evaluate the Veteran’s skin condition under both DCs to see which is more favorable to the Veteran. However, any favorable finding under the new amendments, post-August 13, 2018, can only be effective as of August 13, 2018. The post-August 13, 2018, DC 7821 of 30 percent requires at least one of the following: 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. The 60 percent rating requires at least one of the following: 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. The Board notes that 60 percent is the highest disability rating under the post-August 13, 2018, DC 7821. The Veteran is already compensated at a 30 percent rating effective April 2009, as of June 2016. The Board will also address below why the preponderance of the evidence is against compensating the Veteran at 60 percent for the period of August 13, 2018, to the present. The issue of topical therapy or systemic therapy does not apply to the case at present as the Veteran is not prescribed topical nor systemic medication for treatment of his skin condition, as discussed below. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation and does not require specialized education, training, or experience. See Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159. When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran underwent a VA examination in August 2014 for a medical opinion as to whether his adrenal insufficiency resulting from steroid treatment resulted in the need of prolonged steroid use and if so, what, if any complications resulted from the additional steroid treatment required as a result of an adrenal insufficiency? Also, to see if the veteran had any complications of adrenal insufficiency? The VA examiner indicated that the Veteran’s prolonged use of steroids had resulted in skin thinning, delayed healing, hyperlipidemia and probably glaucoma. The VA examiner also indicated that the complications of the adrenal insufficiency was the need for continued steroid use. The Board finds that the VA examiner’s medical opinion is competent, credible, with significant probative weight. The VA examiner clearly indicated the cause of the Veteran’s skin condition and the need for continued use of steroids due to the Veteran’s adrenal insufficiency. The Veteran was provided a VA examination in June 2016 for skin diseases in which the VA examiner indicated, The Veteran states that he bruises easily and bleeds easily. He had a large amount of striae on his abdomen from weight gain and steroids and underwent surgical panniculectomy 12-2014. He still has striae on his abdomen, bilateral groin, right axilla. Skin on hands, lower arms and lower legs are noticeably thin. He states he uses aloe lotion and moisturing creams on his skin. The Veteran was found not to have been treated with oral or topical medications in the past 12 months for any skin condition. The Veteran was also found not to have any episodes, debilitating or otherwise, in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran was noted as not having any of the visible skin conditions listed above. As to the functional impact of the veteran’s skin condition, it was found to impact his ability to work in the sun or around sharp objects that could potentially tear his skin. Finally, the VA examiner found, The Veteran has a 66 x 0.8 cm abd [abdominal] scar from his panniculectomy that is well healed. Post op surgical notes states that he healed well without complications. Skin areas with obvious thinning total 20-40%, visible less than 5%. Hyperlipidemia is not a compensable disability. He is on simvastatin with a normal lipid profile. The Board finds that the VA examination to be competent and credible with significant probative weight. The Veteran’s skin condition is reviewed and is noted as affecting his abdomen, portions of his arms, hands, and legs at 20-40 percent of his skin. The Veteran’s statements as to his use of lotions is noted and his abdominal scar from his panniculectomy in 2014 was taken into consideration. The Veteran did testify before the Board in a hearing on August 9, 2018, about his skin condition. The Veteran indicated that his skin condition was due to his adrenal insufficiency and noted his skin surgery in his stomach area. He also testified that his skin is so thin in his abdominal region that he has ripped his skin while zipping his pants. The Veteran noted that his stomach all the way down to the inside of his thighs are thin. He also indicated that it had moved up a little from the last time he was treated, but indicated he was unsure if it was from the steroid treatments or his chemotherapy treatments. Finally, the Veteran stated that the skin does not burn but it itches, and he uses hot water to help manage the itch. The Board finds that the Veteran’s statements as to his observable symptoms of itching, thinness, and ripping of skin are competent, credible, and with significant probative weight. However, the Veteran’s statements that are to be considered as indicating the portion or percentage of the Veteran’s body that is being affected by the Veteran’s skin condition is a determination that is medical in nature and requires specialized education, training, or experience. 38 C.F.R. § 3.159. Therefore, those lay statements of the Veteran as to a certain percentage of the body being involved or any insinuations therefrom, hold little to no probative weight. The Veteran’s treatment records hold no mention of the Veteran’s skin condition worsening, growing, or being evaluated at a different percentage beyond the VA examination of June 2016. The Veteran’s skin is often noted to be without rashes, without excessive moisture, and without issue except for noting that the Veteran’s skin is thinned in places. See CAPRI records submitted October 2018. The Board finds that as the VA examiner’s opinion of June 2016 is the only competent medical opinion of the Veteran’s record it is therefore the determining factor. The Veteran’s disability picture pre-August 13, 2018, and post-August 13, 2018, only meet the criteria of 30 percent for both versions of the DC. The Veteran’s skin condition manifested as 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, (pre-August 13, 2018), and manifested as only characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected (post-August 13, 2018). At no time does the Veteran’s skin condition manifest either pre-August 13, 2018, or post-August 13, 2018, as more than 40 percent of the entire body or more than 40 percent of exposed areas affected (pre-August 13, 2018), nor having characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected (post-August 13, 2018), which are the requirements of 60 percent for both versions. See 38 C.F.R. § 4.118 DC 7821. The Veteran’s skin condition has not worsened to the point of involving 40 percent of his entire body or more and has not affected more than 40 percent of exposed areas nor are there characteristic lesions involving more than 40 percent of his entire body or more than 40 percent of exposed areas affected. The Veteran’s VA examination indicated that the veteran’s skin condition is considered on his trunk, right underarm, groin, hands, lower arms, and lower legs but caused no scarring or disfigurement of the head, face, or neck. The VA examiner noted as well that the skin areas with obvious thinning were less than 5 percent visibly exposed areas. The Veteran’s skin condition does not meet the criteria for 60 percent either pre-or post-August 13, 2018, versions of the DC. The Board notes that the pre- and post-August 13, 2018, rating evaluations of 30 percent and 60 percent both offer criteria to meet the evaluation if the Veteran is taking systemic therapy that includes 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 (30 percent) and constant or near constant use of those treatments above over the past 12-month period (60 percent). The Board recognizes that the Veteran is taking corticosteroids every day. However, these corticosteroids are for the management of his adrenal insufficiency of which he is already service-connected, and the corticosteroids are not for management nor for the treatment of the Veteran’s skin condition. Therefore, the Veteran is unable to reach a higher evaluation for his skin condition on the use of corticosteroid medication he is required to take. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim for an increased evaluation for the Veteran’s skin condition is not warranted and is denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel