Citation Nr: 21000359 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-00 076 DATE: January 5, 2021 ORDER Entitlement to a 60 percent rating, but no higher, for lichen planus, effective May 6, 2011, but no earlier, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Since the date of his May 2011 increased rating claim, the functional impairment resulting from the Veteran’s service-connected lichen planus has more nearly approximated a skin condition covering 40 percent or more of his total body area and/or requiring constant or near-constant systemic therapy, but the preponderance of evidence is against a finding that he has scars or disfigurement of the head, face, or neck as a result of the disability or that there was a factually ascertainable increase in disability in the one-year period prior to his May 2011 increased rating claim. 2. The Veteran meets the schedular percentage requirements for TDIU, and his service-connected disabilities at least as likely as prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no higher, for lichen planus, effective May 6, 2011, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R.§§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7822. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied a rating in excess of 30 percent for lichen planus. The Board notes TDIU is an element of the Veteran’s appeal of the rating assigned for lichen planus because he has explicitly raised the issue of unemployability during the appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appeared at a hearing before the undersigned in April 2016. A transcript of the hearing is of record. In August 2016, the Board remanded the Veteran’s increased rating claim for lichen planus so the Agency of Original Jurisdiction (AOJ) could obtain dermatological treatment records discussed during his April 2016 hearing, as well as schedule the Veteran for an examination shortly thereafter based on his lay reports that manifestations of his lichen planus are consistently worse during warmer months. The AOJ obtained the outstanding dermatological treatment records and scheduled the Veteran for new examination in August 2017, which confirmed the Veteran’s lay reports regarding flare-ups and led the AOJ to assign a 60 percent rating for lichen planus effective from the date of the August 2017 examination. Yet, the AOJ subsequently reduced the rating assigned for lichen planus from 60 percent to 30 percent, effective November 26, 2019, based on an examination report that was obtained after the issuance of the AOJ’s October 2018 post-remand supplemental statement of the case (SSOC) but prior to certification of the appellate record to the Board in January 2020. As a result, in May 2020, the Board again remanded this appeal so the AOJ could issue an updated SSOC to ensure the Veteran is afforded due process. The AOJ issued an updated SSOC in September 2020 and has now returned the matter to the Board for further appellate consideration. Thus, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a 60 percent rating, but no higher, for lichen planus, effective May 6, 2011, but no earlier, is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. Where, as in the present case, entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the most critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board notes a staged rating is currently assigned for lichen planus during the appeal period based on the Veteran’s May 2011 increased rating for the disability with a 30 percent rating assigned prior to August 17, 2017; a 60 percent rating assigned from August 17, 2017 to November 25, 2019; and 30 percent rating assigned thereafter. The Veteran’s disability is rated under 38 C.F.R. § 4.118, Diagnostic Code 7822. The Board notes the Schedule for Rating Skin Disabilities, to include Diagnostic Code 7822, was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders. Although there is no specific effective date provided for ratings issued under the new criteria, there is no guidance on whether the regulations are retroactive. As a result, 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 (Aug. 13, 2018). Although the Veteran’s claim 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 an increased rating. Under the version of Diagnostic Code 7822 in effect prior to August 13, 2018, a 10 percent rating is warranted when at least 5 percent, but less than 20 percent, of the entire body or of exposed areas are affected; or when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or of exposed areas are affected or where 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. A 60 percent rating is warranted where more than 40 percent of the entire body or 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. 38 C.F.R. § 4.118. Under the revised Diagnostic Code 7822, 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 not 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 7822 (Aug. 13, 2018). A 30 percent rating requires at least one of the following: characteristic lesions involving 20 percent 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. 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. In addition, the August 2018 revision to the Schedule for Rating Skin Disabilities included a new regulation regarding systemic therapy. Under the new regulation, “systemic therapy” is treatment that is administered through any route other than the skin with “topical therapy” being treatment that is administered through the skin. 83 Fed. Reg. 32,592 (July 13, 2018). The new regulation creates a bright-line definition of topical and systemic treatment therapies. Prior to this change, VA regulation did not define topical or systemic treatment with determination of whether a claimant received topical or systemic treatment being based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). Here, the Board finds a 60 percent rating is warranted from the date of the Veteran’s May 2011 increased rating claim whether the old or amended criteria are analyzed because the record establishes the functional impairment resulting from the Veteran’s service-connected lichen planus has more nearly approximated a skin condition covering 40 percent or more of his total body area and/or requiring constant or near-constant systemic therapy since that date. The Veteran has consistently reported that manifestations of his lichen planus are far worse in warmer months when compared with cooler months. The Board finds the Veteran’s lay reports highly credible because they have been confirmed by objective examinations during the appeal period. In its August 2016 remand, the Board directed the AOJ to schedule the Veteran for new examination in the summer to assist in the establishment of his claim for a higher rating for lichen planus. The August 2017 VA examination confirmed the Veteran’s reports of flare-ups of lichen planus as the examiner reported the condition affects more than 40 percent of the Veteran’s total body area. Similar findings were shown during a July 2018 VA examination. Yet, the AOJ reduced the rating assigned for lichen planus to 30 percent based on a November 2019 VA examination in which it was noted lichen planus affects between 20 and 40 percent of the Veteran’s total body area; however, the Board finds the probative value of the November 2019 VA examination report is insufficient to overcome the probative value of the Veteran’s credible and competent reports of flare-ups during warmer months. The Board notes it must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. The record in this case establishes the Veteran experiences flare-ups of lichen planus that support an award of a 60 percent rating. It is inconsistent with VA regulation to reduce the rating assigned for lichen planus based on the results of an examination that was conducted during a cooler month in which the Veteran has conceded he does not typically experience flare-ups. The Board acknowledges the Veteran’s initial VA examination in July 2011 shows lichen planus affected approximately 30 percent of his total body area at that time, supporting the assignment of a 30 percent rating under Diagnostic Code 7822; however, prior to the August 2018 revision to the Schedule for Rating Skin Disabilities, VA regulation did not define topical or systemic treatment with the determination of whether a claimant received topical or systemic treatment being based on the factual circumstances of each case. Johnson, 862 F.3d at 1354-56. In this case, treatment records and examination reports show the Veteran has used a series of topical corticosteroids (fluocinonide, triamcinolone, clobetasol, flurandrenolide, desonide, etc.) throughout the appeal period. In Johnson v. Shulkin, the Federal Circuit noted a topical corticosteroid could fit or approximate the definition of systematic therapy if it affects the body as a whole or is administered on a large enough scale to affect the body as a whole. 862 F.3d at 1355. Here, the Veteran has been required to apply corticosteroids to his neck, arms, trunk, genitals, buttocks, and legs throughout the appeal period, suggesting the large-scale administration discussed in Johnson. Further, in July 2011, the Veteran’s treating physician explicitly recommended the Veteran undergo systematic therapy in the form of Kenalog injections or oral acitretin, although the Veteran declined at that time after being informed of the potential side effects but later opted to undergo systematic therapy in the form of constant or near constant phototherapy. In sum, the Board finds the evidence prior to August 2017, although not explicitly supporting a finding that lichen planus affected more than 40 percent of the Veteran’s total body area, does show his disability picture more nearly approximated constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs as contemplated by the criteria outlined in Diagnostic Code 7822 prior to the August 2018 revision. Since August 2017, the evidence clearly shows lichen planus affects 40 percent of the Veteran’s total body area and requires constant or near constant systematic therapy, which supports a 60 percent rating under either pre- or post-revision criteria. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds a 60 percent rating is warranted for lichen planus from the date of the Veteran’s May 2011 increased rating claim for the disability. The Board acknowledges the effective date of an award of increased compensation can be up to one year prior to the date of claim if there is a factually ascertainable increase in disability during this period. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). The Veteran’s lay reports and treatment records indicate his lichen planus has flared at various points since its initial onset during the Veteran’s period of active service, but there is no evidence that suggests a specific increase in disability from the period from May 2010 to May 2011 that would warrant application of the exception to the general effective date provisions outlined in 38 C.F.R. § 3.400. Finally, the Board notes a 60 percent rating is the highest schedular rating available for lichen planus under Diagnostic Code 7822. To the extent that higher ratings could be awarded for scars or disfigurement of the head, face, or neck, there is no evidence that suggests the Veteran has scars or disfigurement of the head, face, or neck as a result of lichen planus. The Veteran has been provided seven VA examinations during the appeal period. All his VA examiners have reported the Veteran does not have this type of impairment. The record also includes several photographs of the Veteran’s head, face, and neck, which confirm the examiners’ reports. Additionally, the Veteran appeared at hearing before the undersigned in August 2016 and did not appear to have any scars or disfigurement of the head, face, or neck or provide any testimony in this regard. As a result, the preponderance of evidence is clearly against a finding that a rating in excess of 60 percent is warranted under any other provision of the Schedule for Rating Skin Disabilities at any point in the appeal period. Nevertheless, a 60 percent rating is warranted for lichen planus from the date of the Veteran’s May 2011 increased rating claim for the disability, and, to that extent, the Veteran’s appeal is granted. 2. Entitlement to TDIU is granted. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Yet, a finding of total occupational impairment is not necessary to establish entitlement to TDIU. See 38 C.F.R. § 4.16(a) (indicating TDIU may be assigned in cases of marginal employment). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran meets the schedular percentage requirements for TDIU. As discussed above, the Board finds a 60 percent rating is warranted for lichen planus from the date of his May 2011 increased rating claim for that disability, which meets the schedular requirements for TDIU standing alone. The Veteran’s service-connected headache disability is also currently rated as 50 percent disabling with a 10 percent rating also being assigned for tinnitus, resulting a combined 80 percent rating, in addition to noncompensable bilateral hearing loss and a right eyebrow scar. Thus, the only issue that remains is whether the Veteran’s service-connected disabilities prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The Board finds the Veteran’s service-connected disabilities at least as likely as prevent him from engaging in substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. The record establishes the Veteran has not worked in several years after ending his self-employment as a carpenter. The Veteran undergoes phototherapy for his service-connected lichen planus once every two weeks, which greatly affects work attendance. He has also reported having to bathe several times per day and avoiding wearing certain types of clothing and engaging in certain types of activities to prevent flares of his skin disability. Examination reports and treatment records show he also experiences prostrating attacks as a result of his service-connected migraine headaches several times per week, which leave him completely incapacitated and would result in further absences from work. He also has hearing impairment due to his service-connected bilateral hearing loss and tinnitus. When the combined effects of these disabilities are considered, the Board is unable to find that the Veteran would be able to secure and follow anything other than marginal employment, warranting an award of TDIU in the Veteran’s case. The AOJ will assign the TDIU effective date in the first instance to ensure the Veteran is afforded due process. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.