Citation Nr: 21004670 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-39 285 DATE: January 27, 2021 ORDER Entitlement to a disability rating of 10 percent but no higher, for the entire period on appeal for chronic blisters of feet diagnosed as dyshidrotic eczema is granted. Entitlement to a disability rating of 20 percent but no higher for the entire period on appeal for residuals of broken rib, right side is granted. FINDINGS OF FACT 1. The Veteran’s dyshidrotic eczema is manifested by blisters covering less than twenty percent of his body that required a topical steroid for treatment. 2. The Veteran’s residuals of a broken rib are manifested by a moderate disability of the dominant right shoulder girdle muscles. CONCLUSIONS OF LAW 1. The criteria for a compensable rating of 10 percent but no higher for dyshidrotic eczema for the entirety of the appeal period, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. The criteria for a rating of 20 percent but no higher for residuals of broken rib, right side for the entirety of the appeal period, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.56, 4.71a, 4.73, Diagnostic Codes 5297 and 5302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to August 1986, from December 1990 to July 1991, from December 2001 to January 2003, and from January 2003 to October 2003, and had additional reserve service. In February 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran’s claims file. This matter was previously remanded by the Board in May 2018 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable rating prior to February 23, 2019 and in excess of 10 percent thereafter for chronic blisters of the feet The Veteran contends that he is entitled to a higher rating. The Board notes that during the pendency of this appeal, the RO granted an increase from a noncompensable rating to 10 percent. The Veteran’s chronic blisters of the feet are rated under Diagnostic Code 7806, for dermatitis and eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction 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. 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 Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. 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 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. A 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. 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, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. 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 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, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is dyshidrotic eczema. The Veteran was diagnosed with dyshidrotic eczema in 1990 while in service. The diagnosis was confirmed at both the 2011 and 2019 VA examinations. In a July 2009 treatment note, the Veteran was prescribed clobetasol, which is a topical corticosteroid cream. The evidence does not show that this topical treatment affects the body as a whole, thus it is not systemic. Later examinations indicated that the Veteran’s eczema covered at least 5 but not more than 20 percent of his body. Thus, for the entire period on appeal, the requirements of both the pre- and post-August 13, 2018 regulations for a 10 percent rating have been met. However, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s dyshidrotic eczema does not more nearly approximate 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. The Veteran reports flare ups that require the use of cortico steroids. The February 2019 examiner indicated that such topical steroid use lasted less than six weeks in a twelve-month period. The Board further finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s dyshidrotic eczema does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Both the September 2011 and February 2019 VA examiners indicated that the Veteran’s hydrotic eczema effected less than 20 percent of his body and required a topical cream for treatment. The Board acknowledges that the Veteran is competent to report observable symptoms, to include blisters on his feet, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. Entitlement to a compensable rating prior to February 23, 2019 and a rating in excess of 20 percent thereafter for residual of broken rib, right side The Veteran contends that he is entitled to a higher rating. The Board notes that during the pendency of this appeal, the RO granted an increase from a noncompensable rating to 20 percent. The Veteran’s residuals of a broken rib are rated under Diagnostic Code 5297-5302. Diagnostic Code 5297 pertains to the removal of one or more ribs. The evidence does not suggest that the Veteran has had any ribs removed. However, upon examination, the Veteran was found to have impairments associated with muscle group II. Thus, the Veteran’s residuals of a broken rib are evaluated for ratings purpose under 38 C.F.R. § 4.73, Diagnostic Code 5302, impairment to muscle group II ((pectoralis major II (costosternal), latissimus dorsi and teres major, dorsi, pectoralis minor, and rhomboid) affecting depression of the arm from vertical overhead to hanging at the side. 38 C.F.R. § 4.73, Diagnostic Code 5302. The February 2019 VA examiner noted that the Veteran’s disability affected his right side and that his dominant side was his right. Under Diagnostic Code 5302 for a dominant arm, a slight disability warrants a noncompensable rating, a moderate disability warrants a 20 percent rating, a moderately severe disability warrants a 30 percent rating, and a severe disability warrants a 40 percent rating, the highest rating available under the diagnostic code. 38 C.F.R. § 4.73, Diagnostic Code 5302. Factors for consideration in the rating of muscle disabilities are set forth in 38 C.F.R. §§ 4.55 and 4.56. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Slight muscle disability contemplates a simple wound of muscle without debridement or infection; service department record of superficial wound with brief treatment and return to duty, healing with good functional results, no cardinal signs or symptoms of muscle disability; and minimal scarring without evidence of fascial defect, atrophy, or impaired tonus, or impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate muscle disability contemplates a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history regarding this type of injury should include a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe disability is characterized by a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring, with a history of hospitalization for a prolonged period for treatment of the wound, and a record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings include entrance and (if present) exit scars indicating track of missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance or normal firm resistance of muscles as compared with sound side, and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe disability of the muscles consists of a through and through or deep penetrating wound due to a high-velocity missile, or large or multiple low velocity missiles, or with shattering bond fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There is a history showing hospitalization for a prolonged period for treatment of the wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(4). Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, loss of deep fascia or muscle substance on palpation or soft flabby muscles in the wound area, and abnormal swelling and hardening or the muscles in contraction. 38 C.F.R. § 4.56(d)(4)(iii). Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment. If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle, and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4)(iii). The Veteran underwent a VA examination in February 2019. The examiner found that the Veteran had occasional lowered threshold of fatigue and occasional fatigue-pain. Muscle strength was noted as normal and no atrophy was present. The Veteran did not need the use of an assistive device nor was the injury so severe that amputation with prosthesis would equally serve him. (Continued on the next page)   In both his written statements and his testimony before the Board, the Veteran has indicated that his disability has been present for the entirety of the appeal period. Although the Veteran indicated that his disability had worsened, his descriptions of fatigue and fatigue pain due to the injury have remained constant throughout the appeal period. The Veteran indicated that he used a duty belt and brace during his work hours, but upon taking the off the duty belt, his back was painful. Thus, the Board concludes that the Veteran’s residuals of right rib fracture have been manifest by a moderate disability of the dominant right shoulder girdle muscles. However, the Board finds that the Veteran’s residuals of a right rib fracture do not more closely approximate moderately severe impairment. While most of the criteria concern residuals from a gunshot wound or other projectile, objective findings for moderately severe impairment include tests for strength and endurance when compared with the sound side. Here, there are no indications of any reduction in strength. As such, a 30 percent rating for moderately severe impairment of muscle group II is not warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.