Citation Nr: 20028843 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 17-14 024A DATE: April 24, 2020 ORDER Entitlement to a compensable rating for seborrheic dermatitis is denied. REMANDED Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s seborrheic dermatitis has affected less than 5 percent of his entire body and exposed areas and has required no more than topical therapy throughout the appeal period. CONCLUSION OF LAW The criteria for a compensable rating for seborrheic dermatitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1987 to July 1990 and from January 2003 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 statement, the Veteran withdrew his pending Board hearing request. 38 C.F.R. § 20.704(e). 1. Entitlement to a compensable rating for seborrheic dermatitis is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. By way of background, an April 2010 rating decision awarded service connection for seborrheic dermatitis and assigned a noncompensable rating, effective January 12, 2005. The current appeal period before the Board begins on August 18, 2011, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s seborrheic dermatitis is rated under the provisions of 38 C.F.R. § 4.118, DC 7806. Prior to August 13, 2018, under DC 7806, a noncompensable rating is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed area and requiring no more than topical therapy during the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. As of August 13, 2018, DC 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. The formula provides for a 10 percent rating where there is 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, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12 month period. A 30 percent rating is assigned where there is 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. A maximum 60 percent rating is warranted where there are 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. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court of Appeals for Veterans Claims, in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”). Upon review of the totality of the record, the Board finds that a compensable rating is not warranted at any point during the appeal period. At each VA examination for skin diseases, the Veteran reported that his skin condition only affected his face and scalp. Both the July 2013 and December 2016 VA examiners specifically found that the Veteran’s seborrheic dermatitis affected 0 percent of the entire body and 0 percent of exposed areas. Additionally, the Veteran’s use of topical medications, including Absorbase topical ointment, lotions, and creams, was noted during the appeal period. However, the evidence does not indicate that such topical treatment was administered on a large scale, but instead only on affected areas, specifically his face and scalp. Therefore, this limited use would not meet the definition of systemic therapy under Johnson v. Shulkin. Moreover, there is no evidence showing that such topical treatment otherwise affected the Veteran’s body as a whole and he has not used intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during a 12-month period required by the regulatory change. Burton v. Wilkie, 30 Vet. App. 286 (2018). The Board has considered whether a higher rating is warranted for the Veteran’s seborrheic dermatitis under alternate diagnostic codes. However, as there are no findings of disfigurement of the head, face, or neck, a rating under DC 7800 is not for application. Ratings under DC 7801-7805 are also not applicable, as the Veteran does not have any scars associated with his skin disability. Moreover, the Veteran’s dermatitis is not described as exfoliative, and he does not have neoplasms, debilitating episodes, acne, or require any therapy. Accordingly, for reasons outlined above, the Board finds that a compensable rating for seborrheic dermatitis is not warranted. REASONS FOR REMAND 2. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. 3. Entitlement to a rating in excess of 70 percent for PTSD is remanded. The most recent adjudication of the Veteran’s migraine headaches and PTSD was in the January 2017 Statement of the Case (SOC). Thereafter, additional evidence relevant to the increased rating claims on appeal was associated with the record, including VA examination reports and treatment records that are not subject to automatic waiver provisions. The appeal was thereafter transferred to the Board in February 2019. Here, the Agency of Original Jurisdiction (AOJ) did not issue a Supplemental Statement of the Case (SSOC) in response to such relevant evidence, as is required by applicable regulations. 38 C.F.R. § 19.37(a) (Evidence received by the AOJ prior to transfer of the records to the Board after an appeal has been initiated, including evidence received after certification has been completed, will be referred to the appropriate rating or authorization activity for review and disposition. If a SOC was prepared before the receipt of the additional evidence, a SSOC will be furnished as provided in § 19.31.) Accordingly, per, 38 C.F.R. §§ 19.31 and 19.37(a), these claims must be remanded to the AOJ for consideration of the additional evidence and issuance of a SSOC. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then readjudicate the issues on appeal considering all evidence added to the record since the January 2017 SOC. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.