Citation Nr: 21066878 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 13-24 868A DATE: November 2, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for a skin condition is denied. FINDING OF FACT Throughout the appeal period, the assigned 60 percent rating is the highest schedular rating allowed for the Veteran's skin condition (dermatitis (variously diagnosed as tinea versicolor, dyshidrotic eczema and porphyria cutanea tarda)) under the relevant Diagnostic Codes (DC 7806, 7815). CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806, 7815. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1966 to April 1969, including service in Vietnam. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in December 2016. A transcript of that proceeding is of record. In August 2021, the Veteran was notified that the VLJ who presided at the December 2016 hearing is no longer with the Board of Veterans' Appeals (Board), and he was afforded the opportunity to be heard at an additional hearing before a current VLJ. The Veteran has not responded to that notification; therefore, the Board will proceed with the adjudication. This case was initially considered by the Board in a November 2017 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court/CAVC). In a September 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR/JMR) of the November 2017 Board decision. In accordance with the JMR, the Court vacated and remanded the decision denying a compensable rating for the Veteran's skin condition prior to September 10, 2013. The Court agreed with the JMR, that VA failed in its duty to assist the Veteran in obtaining all his medical documentation before 2013 for skin condition. The Board issued a Remand in March 2019, directing that relevant records be identified and requested to be added to the claims file for consideration by VA. VA requested records identified by the Veteran as relevant to his claim. In a January 2020 Remand, the Board directed that additional records be requested and obtained, and that a medical opinion concerning the severity of the Veteran's skin condition prior to September 10, 2013 be obtained. An opinion was obtained, however, the examiner declined to speculate on a retroactive opinion on the Veteran's skin condition without an in-person examination and recommended an in-person examination be completed. In light of that opinion, in December 2020, the Board again remanded the claim, directing that the Veteran be accorded an in-person examination and an opinion be obtained. Based on the newly obtained opinion, in May 2021, the RO granted an initial 60 percent disability rating. The case returns to the Board for consideration of a rating in excess of 60 percent. Increased Rating Skin Condition The Veteran is seeking a rating for his skin condition in excess of 60 percent. Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes of 7815-7806 indicate that the Veteran's dermatitis is the predominant disability. The Veteran's skin condition has been evaluated at 60 percent under DC 7815-7806 throughout the appeal period. Effective August 13, 2018, VA amended its regulations governing skin and scar disabilities. Relevant to the Veteran's evaluation, the new regulations revise the rating criteria for DC 7801, 7802, 7806, 7816 and 7825. VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Here, as the claims were made prior to August 2018, the Board will evaluate the condition under both the new and old regulations. Prior to August 13, 2018, under both DC 7806 and DC 7815, 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, DC 7806, 7815, 7816, 7821, 7822. 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. Under the new regulations, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118 (b). Although this provision was not included in the old regulation, 38 C.F.R. § 4.14 under both new and old regulation prohibits rating the same disability or the same manifestation of a disability under different diagnostic codes (which is called "pyramiding"). Under both old and new regulations, 60 percent is the maximum schedular rating for each diagnostic code of DC 7806 and 7815. As the Veteran is already rated at 60 percent for his skin condition, a higher rating in excess of 60 percent is not warranted under the rating schedule. Under both new and old regulations, dermatitis is rated under DC 7806 based on either skin involvement/type of treatment or as disfigurement/scars, depending upon the predominant disability. Here, the September 2013 VA examination showed that the affected area of the Veteran's skin condition was most of his body, specifically, anterior and posterior trunk, bilateral upper and lower extremities, groin and groin area, but the examiner noted that there was no scarring or disfigurement of the Veteran's head, face, or neck. As the Veteran's head, face, and neck have not been affected or disfigured from his skin condition, there is no evidence to support a separate skin rating, and a higher rating is not warranted under the rating schedule. Neither the Veteran, nor his representative, has argued otherwise. In sum, the Veteran has received the highest available rating for this skin condition throughout the entire appeal period, and the evidence does not support granting a separate rating. The appeal is denied. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.