Citation Nr: 20022706 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 13-31 288A DATE: April 1, 2020 ORDER Prior to April 13, 2011, a compensable initial rating for service-connected eczema is denied. From April 13, 2011 onward, a rating in excess of 10 percent for service-connected eczema is denied. FINDINGS OF FACT 1. For the period prior to April 13, 2011, the Veteran’s eczema was manifested by less than 5 percent of total body affected, with no exposed areas, and constant use of a topical corticosteroid. 2. For the period from April 13, 2011 onward, the Veteran’s eczema was manifested by at least 5 percent, but less than 20 percent, of total body affected; at least 5 percent, but less than 20 percent, of exposed areas affected; and, use of systemic therapy such as corticosteroids for a total duration of less than six weeks during the past 12-month period. CONCLUSIONS OF LAW 1. For the period prior to April 13, 2011, the criteria for a compensable disability rating for eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2011). 2. For the period from April 13, 2011 onward, the criteria for a rating in excess of 10 percent for eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2017 and August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to July 1998. On appeal is an August 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) that granted service connection for dermatitis, left extensor arm/elbow, and assigned a non-compensable (0 percent) rating effective August 13, 2009. The Veteran testified at a hearing before a Veterans Law Judge in this matter in October 2016. A transcript of that hearing has been associated with the Veteran’s claim file. However, the Veterans Law Judge who conducted the October 2016 hearing and signed the April 2018 remand is no longer available to participate in the Veteran’s appeal. The Veteran was given another opportunity to appear at a hearing before a Veterans Law Judge who would decide the claim. However, the Veteran did not respond within 30 days to the notice affording her that opportunity, and the Board of Veterans’ Appeals (Board) will proceed with adjudication. In April 2018, the Board remanded the issue for additional development, to include obtaining a VA examination. Upon completion of the requested development, in an October 2019 rating decision, the RO increased the rating for the Veteran’s service-connected eczema (previously rated as dermatitis) to 10 percent effective April 13, 2011. As the disability rating assigned does not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in April 2010 and September 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Entitlement to a compensable rating for eczema prior to April 13, 2011; and a rating in excess of 10 percent from April 13, 2011 onward. Eczema is rated pursuant to the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the rating criteria in effect when the Veteran filed her claim, Diagnostic Code 7806, regarding dermatitis or eczema, established that a 0 percent rating requires less than 5 percent of the entire body, or less than 5 percent of exposed areas be affected; and, no more than topical therapy required during the past 12-month period. A 10 percent rating requires that 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 be 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 requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected; or 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. A 60 percent rating requires that more than 40 percent of the entire body or more than percent of exposed areas is affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Diagnostic Code 7806 alternately provides for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); or as scars (Diagnostic Code 7801-7805), depending upon the predominant disability. The Board, however, finds that these Diagnostic Codes are inapplicable here. In that connection, Diagnostic Code 7800 is inapplicable in that the Veteran’s skin disorder does not cause disfigurement of the head, face, or neck. Diagnostic Code 7801 governs scars that are deep and nonlinear. Diagnostic Code 7802 governs scars that are superficial and nonlinear and affect an area or areas of at least 144 square inches. Diagnostic Code 7804 governs scars that are unstable or painful. Diagnostic Code 7805 provides that other scars and effects of scars evaluated under the above Diagnostic Codes require the evaluation of any disabling effect(s) not otherwise considered. Here, however, as the evidence establishes that there is no scarring or disfigurement present, and no disabling effects have been demonstrated, the Board finds that the Veteran’s skin disorder is appropriately rated as dermatitis under Diagnostic Code 7806. The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). Although the Veteran’s application was received by VA before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran’s claim for increased rating. Under current Diagnostic Code 7806 regarding dermatitis or eczema under the revised Schedule for Rating Skin Disabilities, a 10 percent rating requires at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy, including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). A 30 percent rating requires at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 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. Id. A 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 involving, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id. The Veteran underwent a VA examination in April 2010. The Veteran reported onset of her skin condition in basic training that began with small red spot on her left elbow/forearm area and slowly increased in size. She also reported being treated with topical steroids which were helpful, but within days or weeks after stopping them, the rash recurs in the same location, often increased in intensity. The examiner noted constant use of a topical corticosteroid in the past 12 months. The examiner also noted the total body area affected was less than 5 percent. Private medical records from the Fairfax Family Practice are associated with the Veteran’s claim file. A February 2010 record reflects the Veteran had a rash to her posterior left forearm, described as really itchy but not painful. The examiner diagnosed her with dermatitis and a topical ointment was prescribed. An April 3, 2011 examination conducted by a physician with Fairfax Family Practice reflects the Veteran had skin lesions on her arms and also had new lesions on her legs, toes and ears. Upon examination, the examiner noted the Veteran had thick scales and hyperpigmentation. Treatment consisted of prescribed ointments and lotions. An October 2016 letter from the Veteran’s treating physician at North Virginia Family Practice states the Veteran has been suffering from chronic eczema which has involved multiple body areas including face, eyelids, hand, ear, left forearm, feet and toes. She has required multiple courses of Prednisone. Photographs of the Veteran’s elbow, face and toes were received by the VA and associated with the Veteran’s case file in August 2009, September 2010, February 2016, and October 2016. The August 2009 photographs show eczema on the Veteran’s left arm. The September 2010 photographs show eczema on the Veteran’s toes. The February 2016 photographs show eczema on the Veteran’s toes and left forearm. The October 2016 photographs show eczema on the Veterans’ left eyelid, hands, right ear, and toes. In summary, these photographs show dry, flaky, hyperpigmented skin. At the October 2016 Board hearing in this matter, the Veteran testified that she has been suffering from chronic eczema, which involves multiple areas of the body, including her face, eyelids, hand, ear, left forearm, feet and toes. She stated she has outbreaks 4 or 5 times a year and that she was prescribed steroids and Prednisone. When asked about how much time is required to use the Prednisone, the Veteran responded, “In the beginning it was usually a week, but now its progressed to a constant . . . a need basis.” The Veteran underwent another VA examination in September 2019. The examiner noted the Veteran continues to have problems with eczema which involves multiple body areas including her face, eyelids, hand, ear, left forearm, feet and toes. The examiner noted the Veteran’s treatment consists of corticosteroids or other immunosuppressive medications (topical steroid cream) of less than 6 weeks duration in past 12 months, as well as an oral agent, prednisone, of less than 6 weeks duration in the past 12 months. Upon examination, the examiner noted the Veteran’s visible characteristic lesions due to her skin condition covered 5 to 20 percent of the total body area; and less than 5 percent of the exposed area. For the Period Prior to April 13, 2011 Upon review of the record, the Board finds that for the period prior to April 13, 2011, a compensable rating is not warranted under prior Diagnostic Code 7806. In order to warrant a rating in excess of 0 percent, the Veteran’s skin disorder would have to be manifested by symptoms covering at least 5 percent of the entire body or 5 percent of exposed areas; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks, but not constantly, during the past 12-month period. Here, however, the February 2010 private treatment record and the April 2010 VA examination both show that the Veteran’s skin disorder covered less than 5 percent of the total body area and less than 5 percent of the exposed area. Additionally, the Veteran had used topical medication, but not systemic therapy, in the past twelve months to treat it. Accordingly, a compensable disability rating is not warranted for the Veteran’s service-connected eczema under prior Diagnostic Code 7806, which was in effect during the entirety of this period on appeal. See 38 C.F.R. § 4.118, Diagnostic Code 7806. For the period from April 13, 2011 onward Upon review of the record, the Board finds that for the period from April 13, 2011 onward, a rating in excess of 10 percent is not warranted under prior Diagnostic Code 7806. In order to warrant a rating in excess of 10 percent, the Veteran’s skin disorder would have to be manifested by symptoms covering at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; 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. Here, however, the private treatment records and the September 2019 VA examination shows that the Veteran’s skin disorder on her left forearm spread to her hands, toes, left eyelid, and right ear, covering 5 to 20 percent of the total body area and less than 5 percent of the exposed area. Additionally, the Veteran reported at that time that she had used topical medication (steroid cream) for less than 6 weeks total duration in the past twelve months and an oral medication (prednisone) for less than 6 weeks total duration in the past twelve months. Accordingly, a rating in excess of 10 percent for this appellate period is not warranted for the Veteran’s service-connected eczema under prior Diagnostic Code 7806. Under the 2018 revised Schedule for Rating Skin Disabilities, the Board finds that a rating in excess of 10 percent for eczema is still not warranted. In order to warrant at least a 30 percent rating, the Veteran’s skin disorder would have to be manifested by characteristic lesions involving at least 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 for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Here, as stated above, the private treatment records and the September 2019 VA examination show that the Veteran’s skin disorder covered 5 to 20 percent of the total body area and less than 5 percent of the exposed area. Additionally, the examiner stated that the Veteran’s treatment consists of corticosteroids or other immunosuppressive medications (topical steroid cream) of less than 6 weeks duration in past 12 months, as well as an oral agent, prednisone, of less than 6 weeks duration in the past 12 months. Accordingly, a rating in excess of 10 percent for the period after April 13, 2011, is not warranted for the Veteran’s eczema under the 2018 revised Schedule for Rating Skin Disabilities. The Board has also considered the lay evidence in this case, particularly the Veteran’s testimony at the October 2016 Board hearing in this matter, that her eczema spread to other parts of her body. However, it was not clear from the Board hearing whether the Veteran required constant use of Prednisone or other topical steroids to control her eczema. In any event, more credence was given to the statements she gave to the September 2019 VA examiner, namely that her eczema required use of corticosteroids or other immunosuppressive medications for less than 6 weeks duration in the past 12 months. In summary, the Board finds that a rating in excess of 10 percent for the Veteran’s eczema from April 13, 2011 onward, is not warranted under Diagnostic Code 7806 under either the pre-August 2018 or the post-August 2018 rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017 and August 13, 2018). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran’s claim for higher ratings, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.