Citation Nr: 21062605 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 19-31 647 DATE: October 8, 2021 ORDER Restoration of a 60 percent rating for actinic keratosis of the torso and extremities effective September 1, 2018, is granted. REMANDED Entitlement to a rating in excess of 60 percent for actinic keratosis of the torso and extremities is remanded. FINDING OF FACT Resolving all doubt in his favor, the evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran's service-connected actinic keratosis, under ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 60 percent rating for actinic keratosis of the torso and extremities effective September 1, 2018, are met. 38 U.S.C. §§ 1155, 5107 (2020); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7806 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a June 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In connection with his appeal, the Veteran originally requested a hearing before a Veterans Law Judge; however, prior to scheduling of a hearing, the Veteran withdrew his request in an October 2019 correspondence. Additional relevant evidence was added to record since the September 2019 statement of the case (SOC). However, as this decision restores the Veteran's disability rating, such is considered a full grant of benefits sought. Further, the issue of entitlement to an increased rating is herein remanded, and thus the AOJ will have an opportunity to review that evidence on remand. Therefore, there is no prejudice in proceeding with a decision. Finally, during the pendency of the appeal, the Veteran argued that his actinic keratosis resulted in secondary conditions of scarring and squamous cell cancer. Pursuant to Bailey v. Wilkie, 33 Vet. App. 188 (2021), the Board would have jurisdiction over such secondary service connection claims. However, the Veteran separately filed claims for service connection for such disorders, resulting in the grant of scarring and a denial of squamous cell cancers. The denial of service connection for squamous cell cancer was separately appeal under the Modernized Appeals system and will be addressed in a separate Board decision. Therefore, for appellate integrity, the Board will not address such claims in this decision. Entitlement to restoration of a 60 percent rating for actinic keratosis of the torso and extremities. The Veteran contends that the June 2018 reduction in rating from 60 percent to 30 percent for his service-connected actinic keratosis of the torso and extremities was improper, and a restoration of the 60 percent rating is warranted. Specifically, he contends his actinic keratosis has not improved, and without his frequent cryogenic excisions, the actinic keratosis would cover much more than 40 percent of his body. After a review of the record, the Board agrees and finds that the rating reduction was improper as the Veteran's disability has not shown sustained improvement, or improvement under the ordinary conditions of daily life, and by its nature it waxes and wanes. At the outset, the Board notes the Veteran is separately service connected for actinic keratosis of the torso and extremities, and residuals of a basal cell carcinoma and actinic keratosis of the face, scalp, and neck. The current appeal only addresses the actinic keratosis of the torso and extremities. The Veteran has submitted numerous statements pertaining to his actinic keratosis of the face, scalp, and neck, however, the symptoms pertaining to that body area are not under consideration for the propriety of the reduction in rating. Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, as well as the fact that he has 60 days to present evidence showing why the reduction should not be implemented and may request a hearing. 38 C.F.R. § 3.105(e). Here, the Veteran was notified of the proposed action in February 2016, and effectuated the reduction more than 60 days after in June 2018. The September 1, 2018 effective date was greater than the last day of the month after a 60-day period from the date of a June 2018 notice letter. Thus, the procedural requirements of 38 C.F.R. § 3.105(e) are met. The Veteran's 60 percent rating was in effect from January 26, 2004, to September 1, 2018, a period of more than ten years. Accordingly, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations apply. 38 C.F.R. § 3.344(c). Under 38 C.F.R. § 3.344(a), rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with VA regulations. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). Additionally, there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 277. For the entire appeal period, the Veteran's actinic keratosis is rated under DC 7806, as analogous to dermatitis. VA recently published a final rule amending its regulations on skin disabilities, effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). 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). Claims pending prior to the August 2018 effective date will be considered under both old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. Here the Veteran's reduction was effectuated under the old criteria, and thus the Board will focus on that criteria. Prior to August 13, 2018, under DC 7806, 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. 38 C.F.R. § 4.118, DC 7806. Turning to the evidence of record, the Veteran was initially awarded service connection for actinic keratosis of the torso and extremities by the Board in an October 2012 decision, which was effectuated in a December 2012 rating decision, which assigned a 60 percent disability rating. The assigned rating was based on private treatment records from 2003 and 2004 that noted severe actinic keratosis involving the chest, back, abdomen, and upper and lower extremities, with severe solar damage including poikiloderma, erythema, atrophy, and elastosis. See e.g. June 2003 VA Dermatology Record. The AOJ also found those treatment records noted the skin was especially marked over the forearms, with generalized xerosis over the trunk and extremities. Id. In the above rating decision however, the AOJ also noted that a June 2010 examination found there was no rash or lesions on the torso, and only erythema around the fingernails, with the majority of the actinic keratosis found on the face, scalp, and neck. Nonetheless, the AOJ maintained the 60 percent rating based on the treatment records as the examination was not evidence of sustained improvement of the condition. The Veteran underwent another VA examination of the skin in January 2013 which addressed his face, neck, and scalp only. Then, he underwent a VA examination in December 2013 which included findings for his torso and extremities. At that time, he was diagnosed with dermatitis and actinic keratosis, and he reported that his actinic keratosis on his torso and extremities had been stable since the last examination, without any removals of lesions. The examiner noted he used a topical cream for his dermatitis on a constant basis for the previous 12 months. The examiner also opined that his actinic keratosis covers 20 to 40 percent of his total body area, including on both arms, trunk, anterior chest, and hands, and less than 5 percent of his exposed body area on his hands. Accordingly, based on this examination, in a January 2014 rating decision, the AOJ continued the 60 percent rating based on near-constant systemic therapy required during the past 12-month period. Notably, it appears the AOJ was either considering the dermatitis as part and parcel to the actinic keratosis, or mistakenly applied the treatment for the dermatitis to the actinic keratosis. A couple months later, in May 2014, the AOJ issued another rating decision continuing the 60 percent disability rating based on the same evidence; however, this time indicating it was because the dermatitis and eczema affected more than 40 percent of his entire body or exposed areas. Again, it appears as though the AOJ continued to rate the Veteran's actinic keratosis as including dermatitis and eczema. Thereafter, in February 2016, the Veteran was afforded another periodic VA examination to determine the severity of his skin disorder. At that time, the examiner included diagnoses of eczema, dermatitis, squamous cell carcinoma, and actinic keratosis. The examiner found the Veteran's dermatitis and actinic keratosis required use of daily sunscreen and Protopic cream on a constant basis for the past 12 months, and required cryosurgery (most recently in 2015) for 6 weeks or more, but not on a constant basis. Upon evaluation, the Veteran's dermatitis was noted to affect 20 to 40 percent of the Veteran's total and exposed body area, while eczema affect 5 to 20 percent of the total body area, and less than 5 percent of the total body area. The examiner clarified by noting that the actinic keratosis encompasses approximately 20 to 40 percent of total body area, and are on both arms, trunk, anterior chest, and hands. Thus, again, actinic keratosis and dermatitis were used interchangeably. Based on the foregoing examination, in a February 2016 rating decision, the AOJ proposed to reduce the Veteran's rating from 60 percent to 30 percent, as the examination showed it only affect 20 to 40 percent of his total and exposed body area, and he only required systemic therapy for 6 weeks or more, but not on a constant basis. The Veteran challenged the proposal and was afforded another VA skin examination in November 2017. The examiner noted diagnoses of actinic keratosis that has turned into squamous cell carcinoma and basal cell carcinoma, as well as actinic keratosis of the torso and extremities. However, the examiner did not provide any estimated areas of affect. Accordingly, the examiner was asked to provide an addendum, which was offered in March 2018. In that note, the examiner stated that there was no actinic keratosis noted on his torso or extremities on the date of the examination, but there were some present on his face, nose, and ears. Consequently, based on the foregoing, the AOJ reduced the Veteran's rating from 60 percent to 30 percent in a June 2018 rating decision. Following the reduction, the Veteran underwent another VA examination pertaining to scars in December 2019. In that examination, similar to the February 2016 examination, the Veteran was found to have dermatitis affecting 20 to 40 percent of his total and exposed body area, and eczema affecting 5 to 20 percent of his total body area, and less than 5 percent of his exposed body area. Again, like the February 2016 examination, the examiner clarified that the actinic keratosis encompasses approximately 20 to 40 percent of his total body area, and are on both arms, trunk, anterior chest, and hands. The examiner noted that on examination of the skin of his scalp, face, neck, chest, back, abdomen, upper extremities, and lower extremities, there remains rather severe solar damage with poikiloderma, erythema, atrophy, and elastosis. The Veteran was also continuously undergoing private dermatological treatment at Lackawanna Valley Dermatology during the pendency of the appeal, which is also probative. While the Veteran had more lesions removed from his face, scalp, and neck during this time, the Board will again only focus on those affecting his torso and extremities. In this regard, he had one lesion removed from his forearm in May 2007, two lesions removed from his forearms in June 2009, 11 lesions removed from his torso and extremities in February 2016, seven lesions removed from his hands and arms in March 2016, one removed from his arm in December 2016, two removed from his wrist and arm in December 2017, and six lesions removed from his arm and forearms in January 2019. See 2007-2019 Lackawanna Valley Dermatology Treatment Records. Based on the foregoing, the Board finds that the reduction from a 60 percent disability rating to a 30 percent rating was improper. In this regard, the record does not reflect that the Veteran's skin disability showed sustained improvement at the time of the reduction. While the reduction was predicated on two VA examinations, in February 2016 and November 2017, the results of those examinations do not in fact, show improvement of his condition. First, the February 2016 examination showed actinic keratosis affected 20 to 40 percent of the Veteran's total and exposed body area, while eczema affect 5 to 20 percent of the total body area. This is the exact same amount of body area affected by actinic keratosis as shown in the December 2013 examination, and more area for eczema. Importantly, while the Veteran is not expressly service-connected for eczema, the AOJ considered it as part of the disability picture in the May 2014 rating decision. Regardless, the findings pertinent to actinic keratosis did not change. Further, the AOJ proposed to reduce the rating based on the finding of six weeks or more use of systemic therapy, but not constant. However, the type of "therapy" or treatment the Veteran receives is not directly analogous to the ratings schedule. Notably, the Veteran's treatment requires total excision of the skin disorder. Whereas normal systemic therapy per the ratings schedule would in theory suppress the disability and leave the skin intact, the Veteran's treatment permanently scars the skin. Accordingly, the Veteran argues that but for this treatment, he would have far more than 40 percent of his body covered. The Board agrees and finds the type of treatment considered in the ratings schedule is not analogous. Thus, it is more accurate to rate based on amount of body area affected. Which as shown above, did not change between December 2013 and February 2016, and would have been worse but for the treatment. Turning to the November 2017 examination, the Board does not afford these findings much probative weight. Importantly, the noted affected area is drastically different than any other finding of record, including the February 2016 examination just prior to it, and the December 2019 examination just following it. Further, while the examiner opined that there was no actinic keratosis at all on the torso and extremities, the treatment records show he had two lesions removed from his wrist and arm just over a month later. Finally, the Veteran's treatment records also show that his condition has not shown sustained improvement. Notably, just a week after the proposed reduction, the Veteran had 11 lesions removed from his torso and extremities. In perspective, he had a total of 3 removed from his torso and extremities prior to the proposed reduction. In total, he has had 27 lesions removed from his torso and extremities since the proposed rating reduction, and purported improvement in his disability. Accordingly, the treatment records do not reflect that his condition has improved at all, let alone sustained improvement. In a rating reduction case, it is not sufficient to only show that an improvement in a disability has actually occurred. That is, it is not sufficient to show that the Veteran's actinic keratosis symptoms had decreased in severity. Instead, the evidence must also demonstrate that any such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. See Brown, at 420-21. In the instant case, the Board finds that both requirements have not been met. The Veteran was granted a 60 percent rating in December 2012 because his treatment records showed severe actinic keratosis involving the chest, back, abdomen, and upper and lower extremities, with severe solar damage including poikiloderma, erythema, atrophy, and elastosis. Notably, the VA examination reports and treatment records continue to reflect severe actinic keratosis, necessitating more frequent cryogenic removals. Therefore, while the removals serve to reduce the amount of actinic keratosis present at any one time, the Board does not find the condition has substantially improved. Accordingly, based on the analysis above, the reduction in the rating assigned for the Veteran's actinic keratosis of the torso and extremities was not proper and restoration of the 60 percent rating is warranted effective September 1, 2018. REASONS FOR REMAND Entitlement to a rating in excess of 60 percent for actinic keratosis of the torso and extremities. Since the September 2019 SOC, several documents have been added to the record, including VA medical treatment records and VA examination reports, without a supplemental SOC (SSOC) being issued or a waiver of AOJ review. A remand for AOJ initial consideration of the additional evidence is necessary. 38 C.F.R. § 19.31. The matter is REMANDED for the following action: (Continued on the next page) 1. Readjudicate the claim to include consideration of the relevant evidence added to the claims file since the September 2019 SOC. If the benefit sought is not granted, provide the Veteran and his representative with an SSOC and allow them an appropriate time to respond thereto before returning the case to the Board. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.