Citation Nr: 21065338 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 10-25 322 DATE: October 25, 2021 ORDER Prior to February 25, 2010, an initial compensable rating for seborrheic dermatitis face and scalp is denied. Beginning on February 25, 2010, an increased initial rating of 30 percent, but no higher, for seborrheic dermatitis face and scalp is granted. Beginning on November 13, 2019, an increased initial rating of 60 percent, but no higher, for seborrheic dermatitis face and scalp is granted. FINDINGS OF FACT 1. Prior to February 25, 2010, the preponderance of the evidence is against a finding that the Veteran's seborrheic dermatitis face and scalp was manifested by involvement of 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 were required for a total duration of less than six weeks during the past 12-month period consistent with the criteria for a compensable rating. 2. Beginning on February 25, 2010, the evidence is at least in equipoise with regard to showing that the Veteran's seborrheic dermatitis face and scalp required systemic antihistamine treatment for a total duration of six weeks or more, but not constantly, during the past 12-month period consistent with the criteria for a higher 30 percent rating; however, the preponderance of the competent medical evidence is against a finding that it was manifested by constant or near-constant systemic treatment consistent with the criteria for a 60 percent rating. 3. Beginning on November 13, 2019, the evidence is at least in equipoise with regard to showing that the Veteran's seborrheic dermatitis face and scalp required constant or near-constant systemic antihistamine treatment consistent with the criteria for the schedular maximum 60 percent rating. CONCLUSIONS OF LAW 1. Prior to February 25, 2010, the criteria for a compensable rating for seborrheic dermatitis face and scalp have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. 2. Beginning on February 25, 2010, the criteria for an increased rating of 30 percent, but no higher, for seborrheic dermatitis face and scalp have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. 3. Beginning on November 13, 2019, the criteria for an increased rating of 60 percent, but no higher, for seborrheic dermatitis face and scalp have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from May 1973 to April 1976. He also had a period of service from May 1976 to February 1977, which is considered dishonorable for VA purposes. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The rating period for this claim dates back to January 7, 2003, when the claim for service connection was filed. Service connection was granted in a rating decision dated October 2017 and a noncompensable rating was assigned. The Veteran filed an NOD as to the percentage rating in December 2017 and an SOC was issued in April 2020. The Veteran filed his substantive appeal in May 2020 and the appeal was later certified to the Board. This matter was previously before the Board in February 2021, when it was remanded for an updated VA dermatology examination responsive to the Veteran's contentions, to include those dated August 2020, that his disability had worsened and also so that VA treatment records since November 2019 could be obtained and associated with the claims file in accordance with VA's duty to assist. While on remand, the Veteran was afforded the new VA examination in May 2021 and pursuant to a May 2021 rating decision he was granted an increased rating, up from zero to a compensable 10 percent, effective May 18, 2021. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's seborrheic dermatitis face and scalp is evaluated under Diagnostic Code 7806, which pertains to dermatitis or 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. However, 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). Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable disability 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806. 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 Code 7806. 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. See 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Skin disorders may also be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801 through 7805, depending on the predominant disability. 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. See 38 C.F.R. § 4.118 (a). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Analysis Here, the Veteran appeals for an initial compensable rating from January 7, 2003 until May 18, 2021, and then in excess of 10 percent beginning on May 18, 2021, for his seborrheic dermatitis face and scalp. Prior to February 25, 2010, a compensable rating for seborrheic dermatitis face and scalp is denied. Prior to February 25, 2010, the Board concludes that the preponderance of the competent medical evidence is against a finding that the Veteran's seborrheic dermatitis face and scalp was manifested by involvement of 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 in accordance with the requirements for a compensable 10 percent rating. Pursuant to VA treatment records dated September 2003, the Veteran was using capsaicin cream daily in connection with left knee pain. A problem list included in the physical therapist's report mentioned a variety of disparate medical conditions such as tobacco use disorder, wrist pain, and muscle spasms, but was silent for any skin conditions. VA treatment records from June 2004 show that the Veteran was using temovate ointment to treat vitiligo on his left leg. Temovate was discontinued at that time in favor of lidex ointment, and the Board notes that vitiligo is a separate skin diagnosis for which the Veteran is not service-connected. May 2005 VA treatment records document that the clinician observed no lesions or ulcers and the Veteran was using tacrolimus ointment for his vitiligo. In private medical records (PMR) dated August 2005, the clinician affirmatively indicated that the Veteran's skin was normal. VA treatment records from April 2006 also contain a notation that the Veteran's skin was normal, and another record from May 2006 listed hypopigmented confluent patches on left shin as the Veteran's only skin condition. Additional PMR from April 2007 show the Veteran declined that he was experiencing any skin rash or unexplained skin discoloration, while at the same time he indicated that he was experiencing other symptoms such as back pain and limited motion. May 2007 VA treatment records show that the Veteran's skin had no rashes or tophaceous deposits and his skin was judged to be normal. A VA treatment note dated April 2008 states "no rashes" regarding the Veteran's skin and he was not taking antihistamine medication for his skin at that time. In a May 2009 lay statement, the Veteran wrote that he had itchy skin. VA treatment records from June 2009 and September 2009 show he was not yet taking antihistamine medication for his skin. Although the September 2009 records indicate that the Veteran was prescribed prednisone, which is a corticosteroid for the purposes of the ratings criteria under DC 7806, those records also show that the prednisone was for treatment of the Veteran's gout only. Accordingly, based on the preponderance of the evidence, the Board finds that a compensable rating is not warranted prior to February 25, 2010. Beginning on February 25, 2010, an increased rating of 30 percent, but no higher, for seborrheic dermatitis face and scalp is granted. Beginning on February 25, 2010, the Board concludes that the evidence is at least in equipoise with regard to showing that the Veteran's seborrheic dermatitis face and scalp required systemic antihistamine treatment for a total duration of six weeks or more, but not constantly, during the past 12-month period consistent with the criteria for a higher 30 percent rating. Pursuant to the first VA examination report dated March 2017, the examiner indicated that the Veteran was currently taking oral antihistamines such as Benadryl (diphenhydramine) for a total duration of six weeks or more, but not constantly, during the past 12-month period specifically to treat his seborrheic dermatitis. However, review of the Veteran's VA treatment records shows that he was prescribed the same oral antihistamine, diphenhydramine, as far back as February 25, 2010, to treat his skin on a daily basis as needed for itching. He continued to be prescribed it for years thereafter in the interim, in addition to other topical treatments. Under both the old and new versions of Diagnostic Code 7806, a 30 percent evaluation is assigned for 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. Affording the Veteran the benefit of any doubt on the question, the first indication that the Veteran was prescribed antihistamines for his skin during the pendency of this appeal was February 25, 2010, and subsequent medical records demonstrate that he maintained a recurrent prescription. With respect to the period prior to August 13, 2018, the Board finds that the antihistamines prescribed to the Veteran were a systemic therapy in that they affected the entire body in its treatment of the condition at issue, and, further, that the antihistamines were "like" a corticosteroid or other immunosuppressive drug. For the period from August 13, 2018, although systemic antihistamines are not included on the list of examples of systemic therapy contained in the diagnostic code, the code makes clear that the provided list is not exhaustive. VA regulations now state that systemic therapy is treatment that is administered through any route other than the skin. See 38 C.F.R. § 4.118 (a). The Veteran's antihistamines, such as Benadryl, which are oral and have been consistently prescribed throughout this stage on appeal, is now by law a systemic therapy. The nature of the Veteran's treatments for his skin disorder have not changed during this stage on appeal which spans before and after the regulation change. The first indication that he was prescribed diphenhydramine (Benadryl) dates from February 25, 2010 VA treatment records, only months after VA received the Veteran's competent lay statement attesting to his itchy skin. It would be illogical for the Board to consider the Veteran's antihistamine usage a systemic treatment from only August 13, 2018 forward. As such, the evidence is at least in equipoise and we find the Veteran's skin disorder has required systemic antihistamine treatment for a total duration of six weeks or more, but not constantly, during the period from February 25, 2010 through November 12, 2019. On the other hand, during this stage in time, the preponderance of the evidence is against a finding that the Veteran's antihistamine treatment was manifested by constant or near-constant systemic therapy. Pursuant to the March 2017 VA examiner, the Veteran's oral antihistamine treatment was opined to more nearly approximate a total duration of six weeks or more, but not constantly, during the past 12-month period. The Board notes that although the Veteran had an active prescription for diphenhydramine during this time, VA treatment records show it was intended for use on an as-needed basis. Consequently, based on the March 2017 VA examiner's in-person examination of the Veteran and documented review of his medical history and the claims file, the Board affords significant probative weight to the examiner's opinion regarding the total duration of relevant treatment during the period in question. Additionally, the examiner opined that the Veteran's dermatitis involved less than five percent of his total body area and exposed area. Accordingly, based on the preponderance of the competent medical evidence, a higher 60 percent rating is not warranted from February 25, 2010 through November 12, 2019. Beginning on November 13, 2019, an increased rating of 60 percent, but no higher, for seborrheic dermatitis face and scalp is granted. Beginning on November 13, 2019, the evidence is at least in equipoise with regard to showing that the Veteran's seborrheic dermatitis face and scalp required constant or near-constant systemic antihistamine treatment consistent with the criteria for the schedular maximum 60 percent rating. The May 2021 VA examiner noted that the Veteran was using a combination of the oral antihistamines diphenhydramine and loratadine, as well as topical medications, to treat his seborrheic dermatitis. The examiner also opined that the total duration of medication use in the past 12 months was constant or near constant. However, review of the Veteran's VA treatment records shows that he was continuing to take diphenhydramine when he was prescribed loratadine on November 13, 2019; therefore, resolving all reasonable doubt in favor of the Veteran, the combination of systemic antihistamine treatment that he was utilizing constantly or near-constantly according to the VA examiner in May 2021 actually began earlier on November 13, 2019. Accordingly, the evidence is at least in equipoise with regard to showing that the Veteran's seborrheic dermatitis face and scalp required constant or near-constant systemic antihistamine treatment consistent with the criteria for the schedular maximum 60 percent rating beginning on November 13, 2019. 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 the Veteran would warrant a higher rating under a different diagnostic code for disfiguration or scars. See 38 C.F.R. § 4.118. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.