Citation Nr: 21004136 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-32 878 DATE: January 26, 2021 ORDER Entitlement to an initial disability rating of 60 percent, but no higher, for service-connected dermatitis with post inflammatory hyperpigmentation, effective April 27, 2011, is granted. FINDING OF FACT For the entire period on appeal, and resolving reasonable doubt in favor of the Veteran, the Veteran’s service-connected dermatitis with post inflammatory hyperpigmentation has required constant or near-constant duration of systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 60 percent, but no higher, for service-connected dermatitis with post inflammatory hyperpigmentation have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a June 2019 rating decision granted an increased rating from 10 percent to 30 percent for the Veteran’s service-connected dermatitis, effective January 24, 2019. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). This issue was previously before the Board in September 2019, at which time the Board remanded in order for the VA to provide a new VA examination and obtain private treatment records. A new VA examination was conducted in January 2020 and private medical treatment records had been associated with the claims file in December 2019. Thus, the Board finds that there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The case has been returned to the Board for further review. The Board notes that its prior September 2019 Remand also denied the Veteran’s claim for entitlement to an effective date prior to April 27, 2011 for the award of service connection for a skin disorder. Board decisions are final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Therefore, the Board’s September 2019 denial of the Veteran’s claim for entitlement to an effective date prior to April 27, 2011 for the award of service connection for a skin disorder is final and no longer part of the appeal. The Board notes that after the RO issued a July 2020 Supplemental Statement of the Case, additional evidence was associated with the claims file. Specifically, additional VA treatment records and VA examinations were associated with the claims file in September and October 2020. A waiver is not necessary, nor is remand for initial consideration of the evidence by the RO, as the newly associated evidence is cumulative of the prior evidence of record and/or not relevant to the Veteran’s claim in this case. See 38 C.F.R. § 20.1305(c). Therefore, the Board may proceed with adjudicating the Veteran’s claim on appeal. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, neither the Veteran nor his representative argue that his service-connected dermatitis at issue renders him unemployable. Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected dermatitis. Accordingly, the Board concludes that a claim for a TDIU has not been expressly raised or inferred. Entitlement to a disability rating of 60 percent, but no higher, for service-connected dermatitis with post inflammatory hyperpigmentation. The Veteran seeks higher evaluations for his service-connected dermatitis with post inflammatory hyperpigmentation. Specifically, the Veteran asserts that his condition is constant, continues to progress, and that inflammation occurs and intensifies if he does not take medication as directed. See October 2013 VA Form 9. The Veteran also asserted that his skin condition results in an inability to sleep due to constant itching and inflammation. Id. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s service-connected dermatitis with post inflammatory hyperpigmentation is currently rated as 10 percent disabling prior to January 24, 2019, and 30 percent disabling from January 24, 2019 pursuant to 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. The Board notes that VA amended the criteria for rating skin disabilities effective August 13, 2018. While DCs 7800 and 7804 were not affected by the amendment, other skin codes were. These new regulations apply to all applications for benefits received by VA or that are pending before the RO on or after August 13, 2018. 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 Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under DC 7806, a 10 percent rating is assigned for 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 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 is assigned for 20-40 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. A maximum 60 percent rating is assigned for 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. The skin disability could also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. For claims prior to August 13, 2018, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. See Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). In this regard, a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large 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 facts of each case. Id. at 1356. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that if there is systemic therapy, such treatment must be “like or similar to” a corticosteroid or other immunosuppressive drug to warrant a rating on that basis. See Burton v. Wilkie, 30 Vet. App. 286 (2018). Effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806. A 10 percent rating is assigned for 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, 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 at least one of the following: characteristic lesions involving more than 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 assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. Under the new rating criteria, “systemic therapy” and “topical therapy” are specifically defined. Systemic therapy is treatment administered through any route (orally, injection, suppository, intranasally) other than the skin, whereas topical therapy is treatment administered through the skin. 83 Fed. Reg. 32592. Resolving reasonable doubt in favor of the Veteran, the Board finds that an initial 60 percent disability rating for the Veteran’s dermatitis is warranted for the entire period on appeal. In that regard, the Veteran was afforded a VA examination in August 2011. The VA examiner noted the Veteran’s report that his skin disease involves areas that are exposed to the sun, including the head, hands, arms, and legs, and experiences exudation, itching, and crusting of the entire body. See August 2011 VA examination. The Veteran reported that his symptoms occur constantly, he experiences side effects, including oozing, from medication to treat his skin condition; and was currently using vanos cream, a topical corticosteroid, twice daily. Id. The VA examiner noted the Veteran was treated with various corticosteroids during service for his skin condition. Id. Upon examination, the Veteran’s skin condition appeared on his arms and legs, including exfoliation, crusting, disfigurement, and hyperpigmentation. Id. The VA examiner noted there was no scar based on the skin examination. Id. The VA examiner indicated the Veteran’s skin condition affects 0 percent of exposed areas, and 5 percent of the whole body. Id. However, additional private treatment records have been associated with claims file in 2018 and 2019 that were not available for review by the August 2011 VA examiner, including an August 2009 prescription for betametnasone cream and March 2011 private dermatologist treatment records. Therefore, the August 2011 VA examination is entitled to less probative weight. As noted, in October 2013, the Veteran asserted that his skin condition was constant, covered more than 20 percent of his body, required daily treatment, and now required injections to treat the disability. See October 2013 VA Form 9. Private treatment records demonstrate the Veteran has been treated with multiple medications for his skin condition. For example, as noted, private treatment records throughout the appeal period demonstrate the Veteran being treated with vanos cream, triamcinolone ointment, Kenalog, clobetasol ointment, ketochomazole shampoo, and hydrocerin cream. See March 2011, October 2012, June 2013, December 2013, June 2014, September 2016, February 2018, and May 2018 private treatment records. In addition to the foregoing medications, VA treatment records also demonstrate the Veteran was treated with camphor cream, fluocinonide cream, and Eucerin cream. See February 2014, September 2016, February 2018, October 2019 VA treatment records. The Veteran was afforded a second VA examination in January 2019. The Veteran reported that his condition was worsening, has itching, scaly patches, and discoloration. See January 2019 VA examination. The VA examiner noted the Veteran’s condition affected 20 percent to 40 percent of the Veteran’s total body area, and less than 5 percent of exposed areas affected. Id. The Veteran had hyperpigmented, thickened, scaly skin to his hands, lower back, femoral and abdominal regions. Id. There were no scars or disfigurement noted. Id. The VA examiner noted the Veteran’s skin condition was treated with topical corticosteroids or other immunosuppressive medications, including clobetasol ointment and hydrophilic top cream, required for a constant/near-constant duration during the past 12 months. Id. The Veteran was afforded a third VA examination in January 2020. The VA examiner noted the Veteran had a skin condition without any visible characteristic lesions at the time of the examination. See January 2020 VA examination. However, the VA examiner noted the Veteran’s report that his skin condition comes and goes and never goes away. Id. The VA examiner noted the Veteran’s skin condition was being treated with topical and injection corticosteroids or other immunosuppressive medications, including triamcinolone, clobetasol, fluocinonide, and Kenalog required for a duration of 6 weeks or more, but not constant basis during the past 12 months. Id. The VA examiner also noted treatment with topical Benadryl required for constant/near-constant duration during the past 12 months and treatment with topical hydrophilic cream on 6 weeks or more, but not constant basis during the past 12 months. Id. The VA examiner noted the Veteran had a hyperpigmented head scar measuring 6 cm x 3 cm. Id. In a January 2020 medical opinion, the VA examiner stated that the topical treatments the Veteran used during the appeal period, including fluocinonide, triamcinolone, and clobetasol, are systemic treatments in its scale, method and side effects. See January 2020 VA medical opinion. Additionally, the VA examiner noted the Veteran received intramuscular steroid injections which are systemic in May 2018 and January 2019. Id. Moreover, the VA examiner noted the Veteran was treated with mostly 2 to 3 topical steroids at the same time, such as triamcinolone, clobetasol, and fluocinonide, and the dosage and period of time he received some of the topical steroids would meet systemic therapy standards. Id. Based on the foregoing, the Board finds that the for the entire period on appeal, the evidence is at least in equipoise as to whether the criteria for an initial 60 percent rating for dermatitis are met. First, though the January 2020 examiner stated the Veteran was being treated with corticosteroids or other immunosuppressive drugs for a duration of 6 weeks or more, but not constant, the January 2019 VA examiner noted the Veteran’s treatment as being constant/near-constant during the past 12 months. The January 2020 VA examiner also noted the Veteran did not demonstrate any visible characteristic lesions at the time of examination, whereas the January 2019 VA examiner indicated the Veteran’s skin condition affected 20 – 40 percent of the Veteran’s whole body. Additionally, the Veteran asserts that his condition is constant, continues to progress, and that inflammation occurs and intensifies if he does not take medication as directed. See October 2013 VA Form 9. In assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). Therefore, the Board will consider the Veteran’s condition when 20 to 40 percent of the Veteran’s entire body was affected that required constant/near-constant duration of treatment as noted by the January 2019 VA examination. Second, a February 2013 VA treatment record notes the Veteran was being treated with “vanos fluocinonide cream.” There is no reason to be believe this is not the same vanos cream referenced in the Veteran’s private treatment record from March 2011. Given the January 2020 VA examiner’s medical opinion that fluocinonide is considered a systemic treatment, the Board finds that the Veteran’s treatment for his skin condition meets the definition of systemic treatment as defined in Johnson. See Johnson, 862 F.3d at 1355. As noted, the January 2020 VA examiner’s rationale included that the Veteran’s medical records show the Veteran was treated with 2 to 3 topical steroids at the same time which further supports the Board’s finding as the Veteran has been treated with multiple medications considered to be systemic in its scale, method and side effects. See January 2020 VA medical opinion. Therefore, an initial 60 percent rating is warranted for the Veteran’s dermatitis for the entire period on appeal effective April 27, 2011, the date of claim. This is the highest schedular rating available under 38 C.F.R. § 4.118, DC 7806. In considering whether a higher rating is warranted, the Board has considered the applicability of any other DCs. In order to warrant a compensable rating for other disfigurement of the head, face, or neck, the evidence must demonstrate skin hyperpigmented in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1). The Veteran was noted to have a hyperpigmented head scar measuring 6 cm x 3 cm. See January 2020 VA examination. Therefore, the Veteran’s hyperpigmented head scar does not warrant a compensable rating under DC 7800. Moreover, there is no evidence that the Veteran’s dermatitis results in other scarring or disfigurement to warrant a compensable rating under DCs 7801 -7805. In that regard, the August 2011 and January 2019 VA examinations did not reveal any scars as a result of the Veteran’s skin condition. The Veteran’s VA treatment records and private treatment records do not document any scars as a result of the Veteran’s skin condition. As such, any additional compensation for scars is not warranted. 38 C.F.R. § 4.118, DCs 7800-7805. In sum, resolving all reasonable doubt in the Veteran’s favor, the Board finds an initial 60 percent disability rating, but no higher, for the Veteran’s dermatitis with post inflammatory hyperpigmentation is warranted effective April 27, 2011. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.3, 4.7, 4.118, DC 7806; Gilbert v. Derwinski, 1 Vet. App. 49, 53, (1990). This is the highest schedular rating available under 38 C.F.R. § 4.118, DC 7806. Therefore, any claim for a higher schedular rating under that DC must be denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.