Citation Nr: 21064916 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 15-10 773 DATE: October 22, 2021 ORDER Entitlement to an initial compensable rating of 30 percent prior to September 17, 2018, and a 60 percent rating thereafter for keratosis pilaris is granted. Entitlement an initial compensable rating for pigmented nevus is denied. FINDINGS OF FACT 1. From July 15, 2013, the date of the claim for service connection for keratosis pilaris affected 20 to 40 percent of the entire body. 2. From September 17, 2018, the Veteran's keratosis pilaris has been treated with constant or near-constant systemic therapy including, but not limited to, corticosteroids administered through topical therapies administered through the skin. 3. For the entire period on appeal, the Veteran's pigmented nevus has not been shown to be unstable, painful, nonlinear, or deep, or of a size warranting a compensable rating, and does not result in disabling effects. CONCLUSIONS OF LAW 1. For the period from July 15, 2013, to September 16, 2018, the criteria for a 30 percent disability rating for the Veteran's keratosis pilaris have been met or approximated. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.118. 2. For the period from September 17, 2018 forward, the criteria for a 60 percent disability rating for the Veteran's keratosis pilaris have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.118. 3. The criteria for an initial compensable rating for pigmented nevus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably from January 1989 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In December 2015, the Veteran's representative appeared before the undersigned, in which the Veteran was unable to attend, in a videoconference hearing; a transcript of the hearing is of record. In August 2018 and July 2020, the Board remanded the matters to the RO for further development to include VA examinations. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that 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. 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 Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an initial 30 percent rating and a 60 percent rating from September 17, 2018, for keratosis pilaris The Veteran contends that her service-connected keratosis pilaris and pigmented nevus are more severe than are currently rated. The Veteran is seeking entitlement to an initial compensable rating for keratosis pilaris. The Board notes that a December 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ) granted an increased rating from noncompensable to 60 percent, effective July 18, 2019. This is the highest rating available under Diagnostic Code 7806. Thus, the issue on appeal is whether the Veteran is entitled to a compensable rating prior to July 18, 2019. Subsequent to the filing of the claim for an increased rating for keratosis pilaris on appeal, the criteria for rating skin disabilities were amended, effective 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. 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 Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied." 83 Fed. Reg. at 32593; see generally VAOPGCPREC 3-2000, 7-2003. As the claim for consideration was filed prior to August 13, 2018, it must be considered under the rating criteria in effect both before and after August 13, 2018. The Veteran's keratosis pilaris is rated by analogy under DC 7806. Under the criteria in effect prior to August 13, 2018, 38 C.F.R. § 4118, DC 7806 provided for a noncompensable rating for eczema that affected less than 5 percent of the entire body or less than 5 percent of exposed areas affected and required no more than topical therapy for a 12-month period. A 10 percent rating was warranted for eczema that affected 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 or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during a 12-month period. A 30 percent rating was warranted for eczema that affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas or required systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during a 12-month period. A 60 percent rating was warranted for eczema that affected more than 40 percent of the entire body or more than 40 percent of exposed areas or required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during a 12-month period. For claims filed prior to August 13, 2018, the Court held that a systemic 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, 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, long-wave ultraviolet-A light (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 under the August 13, 2018, revisions when there is 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 under the August 13, 2018, revisions 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 PUVA or other immunosuppressive drugs required over the past 12-month period. Effective August 13, 2018, systemic therapy is defined as treatment that is administered through any route other than the skin, and topical therapy as treatment that is administered through the skin. 38 C.F.R. § 4.118(a). An initial 30 percent rating, from July 15, 2013 The Veteran has VA treatment notes reflecting her complaints for her skin disability, and she was afforded VA examinations in December 2013, July 2019, and January 2021. At the December 2013 VA examination, the Veteran's keratosis pilaris was noted on the buttocks, legs and arms. The keratosis pilaris did not cause scarring or disfigurement of the head, face or neck or any systemic manifestations. The Veteran used over the counter topical medications for 6 weeks or more, but not constant or near-constant. There were no debilitating episodes in the past 12 months. The Veteran's skin condition affected 20 to 40 percent of the total body area and less than 5 percent of the exposed body area described as dry skin on arms, legs and back. The Veteran's skin condition did not impact her ability to work. Community care treatment records document dermatological visits in February and March 2016. The Veteran complained of occasional itchiness on the skin where scratching results in post-inflammatory dyspigmentation for which she utilized absorbase ointment. The Board finds that the Veteran's keratosis pilaris warrants an initial 30 percent evaluation prior to September 17, 2018, but no higher, under either version of the regulation because the Veteran's skin condition affected 20 to 40 percent of the entire body and the evidence of record does not show that her skin condition required constant or near-constant systemic therapy. See Warren v. McDonald, 28 Vet. App. 194, 197 (2016). Thus, an initial 30 percent rating from July 15, 2013, to September 16, 2018 for keratosis pilaris is warranted. A 60 percent rating from September 17, 2018 At the July 2019 VA examination, the physical examination revealed her keratosis pilaris had progressively worsened and affected more of her body. She had been prescribed Retin-A 0.05 percent topical cream for topical use on a daily basis. See also September 2019 Community Care Treatment Note. She was noted to have follicular papules distributed on the arms, legs and trunk. She was prescribed and treated with retinoids on a constant/near-constant basis as of September 17, 2018. Her keratosis pilaris affected the total body area greater than 40 percent and none of the exposed area. The examiner noted keratosis pilaris manifested by rough hyperkeratotic papules follicular based on the upper arms, thighs, and upper back. The examiner noted that the Veteran's skin condition did not impact her ability to work. As previously mentioned, in July 2020, the Board remanded this matter to afford the Veteran a new VA examination. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in January 2021 which resulted in no change of the Veteran's skin ratings. However, as noted above, the Veteran's keratosis pilaris was increased from noncompensable to 60 percent effective July 18, 2019, the date of the July 2019 VA examination. The Board finds the Veteran's keratosis pilaris has been treated with a retinoid on a constant/near-constant basis as of September 17, 2018. As such, the Veteran's 60 percent rating for keratosis pilaris is effective September 17, 2018. As this is the maximum schedular rating and there are no contentions advanced that there are findings such that the application of the regular schedular provisions is rendered impractical, entitlement to an extraschedular rating is not for consideration. 2. Entitlement an initial compensable rating for pigmented nevus DC 7819 provides that benign neoplasms are to be rated as scars (DCs 7801, 7802, 7804, or 7805); or as impairment of function of the affected part. Under DC 7801, the following ratings apply for scars not of the head, face, or neck that are deep and nonlinear: a 10 percent rating is warranted where the scarring affects an area or areas of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters); a 20 percent rating is warranted where the scarring affects an area or areas of at least 12 square inches (77 square centimeters), but less than 72 square inches (465 square centimeters); a 30 percent rating is warranted where the scarring affects an area or areas of at least 72 square inches (465 square centimeters), but less than 144 square inches (929 square centimeters); and a 40 percent rating is warranted where the scarring affects an area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7802, a maximum 10 percent rating is warranted for scars not of the head, face, or neck that are superficial and nonlinear and which affect an area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7804, the following ratings apply: a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. The August 13, 2018 skin amendments presented no changes to the rating criteria for DCs 7800, 7804, and 7805. In other words, DCs 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). Finally, both prior to and after August 13, 2018, DC 7803 no longer exists, as it was incorporated into DC 7804. For purposes of rating scars, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). In addition, under DC 7800, separate/and or higher ratings are warranted for scarring that involves the head, face or neck and has at least one character of disfigurement. The Board finds that no higher or alternative rating under a different diagnostic code can be applied. Diagnostic Codes 7801 and 7802 do not apply because the Veteran does not have scars not of the head, face, or neck that are due to her skin condition. Diagnostic Codes 7804 and 7805 do not apply because her pigmented nevus is not unstable or painful, nor does it have any disabling effects that are not contemplated by Diagnostic Code 7806. Finally, the Veteran does not otherwise have diagnoses or symptoms that more closely approximate those necessary for ratings under Diagnostic Codes 7807 through 7818 or 7821 through 7833. The Veteran underwent an initial examination in December 2013 for her skin disabilities. Her diagnosed pigmented nevus was present at .3 cm diameter on the left lateral leg and on the upper left scapula. She was not on any medication for her pigmented nevus nor did it affect her ability to work. A July 2019 VA examination found that the Veteran's pigmented nevus was still present though unchanged. On examination she had a "0.7 x 0.5" brown papule on her mid back. The examiner documented a February 2016 dermatology note that found well demarcated brown papules on the mid back, left forearm and left leg. She was not on any medication for her pigmented nevus. A January VA examination documented the Veteran's pigmented nevus has stayed the same with discoloration of the skin on the back, arms, thighs and buttocks with a darkened appearance covering 5 to 20 percent of the unexposed body. The Veteran denied functional impairment, and impaired ability to perform activities of daily living or occupational impairment. Based on the evidence above, the Board does not find the Veteran is entitled to a compensable rating for her pigmented nevus. Here, the objective findings noted in the VA examination does not warrant compensable ratings under Diagnostic Codes 7801, 7802, or 7804 as the pigmented nevus is inactive; it is not associated with underlying soft tissue damage (Diagnostic Code 7801); it does not cover an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802); nor is it described as painful or unstable (Diagnostic Code 7804). In addition, neither the VA examiners nor the Veteran suggests the presence of other disabling effects to warrant consideration of Diagnostic Code 7805. Accordingly, as the preponderance of the evidence is against finding that the Veteran is entitled to a compensable rating for her pigmented nevus, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran is currently in receipt of a 100 percent combined rating; she has not claimed nor does the record show that her service-connected disabilities affect her ability to obtain or retain substantially gainful employment. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.