Citation Nr: 21067471 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-48 352 DATE: November 4, 2021 ORDER Entitlement to an initial compensable rating prior to April 16, 2021 and in excess of 10 percent from April 16, 2021 and thereafter for a skin disability is denied. FINDING OF FACT The evidence indicates that, prior to April 16, 2021, the Veteran's skin condition manifested in coverage of less than 5 percent total body area and less than 5 percent exposed area and did not require systemic therapy, and from April 16, 2021 and thereafter, the Veteran's skin condition manifested in coverage of 5 to 20 percent total body area, 5 to 20 percent exposed area, and systemic therapy with oral antihistamines required for a duration of less than six weeks during a 12 month period. CONCLUSION OF LAW The criteria for an initial compensable rating prior to April 16, 2021 and in excess of 10 percent from April 16, 2021 and thereafter for a skin disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from March 1987 to October 1997. In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. In March 2021, the Board remanded the appeal for further development. 1. An initial compensable rating prior to April 16, 2021 and in excess of 10 percent from April 16, 2021 and thereafter for a skin disability The Veteran contends that her skin disability is such that a higher rating is warranted. The Veteran's atopic dermatitis is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806 for Dermatitis and Eczema. The Veteran's service-connected atopic has been rated under Diagnostic Code 7806 throughout the entire appeal period. However, effective August 13, 2018, the criteria for DC 7806 was amended. Under the pre-amendment criteria for Diagnostic Code 7806, a 10 percent rating is warranted when 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 are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12 month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12 month period. Id. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12 month period. Id. For claims filed prior to August 13, 2018, the Court held that 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 must be addressed if the treatment is clearly systemic. Id. With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355. Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. 30 Vet. App. 286, 289-93 (2018). Effective August 13, 2018, the criteria for Diagnostic Code 7806 was amended. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). These revisions are applicable to all claims received by VA on or after August 13, 2018. The amendment directs that for claims still pending but filed prior to August 13, 2018, the criteria most favorable to the Veteran will be applied. Under the new criteria, Diagnostic Code 7806 is rated under the General Rating Formula for the Skin, or, depending upon the predominant disability, it may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805). 38 C.F.R. § 4.118 (2018). The new General Rating Formula for the Skin provides a noncompensable rating for a condition which requires no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is warranted for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent 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 for a total duration of less than 6 weeks over the past 12-month period. Id. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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. Id. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Under this formula, a 60 percent evaluation is the highest available rating. Id. Turning to the evidence, in an October 2015 VA examination, the Veteran reported dermatitis on her neck bilaterally, but not on her arms. She stated that her dermatitis comes and goes. She also reported that she used Vitamin E lotion to treat her symptoms. The examiner reported that the Veteran had diagnoses of atopic dermatitis. The examiner stated that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. The examiner also reported that the Veteran did not have benign or malignant skin neoplasms or any systemic manifestations due to any skin diseases. The examiner reported that the Veteran treated with Vitamin E lotion for six weeks or more, but not constant. The examiner noted that the Veteran had not had any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The examiner stated that the Veteran's skin condition did not impact her ability to work. In an April 2017 VA medical record, the examiner noted that the Veteran reported that her rash usually occurs on the upper central chest, around the neck and can sometimes extend to lower face and around the ears. The Veteran stated that she used some mometasone cream which she had for poison ivy treatment and it helped. The Veteran reported that she currently uses vitamin E lotion. The examiner reported mild erythematous subtle papules coalescing into plaques without significant scale on the upper central chest and lower base of the neck, no rash on the face, and mild xerosis throughout the skin. The examiner prescribed ketoconazole cream for the face and desonide prescribed twice a day as needed when rash flares. In April 2017 correspondence, the Veteran submitted photographs demonstrating dermatitis in areas such as the Veteran's ears, along the neckline, and on her arms. In a July 2017 VA examination, the examiner noted that the Veteran had diagnoses of atopic dermatitis and ganglion. The examiner reported that the Veteran has been treating her skin condition with ketoconazole for the face and desonide to the anterior neck and chest for her atopic dermatitis. The examiner stated that the Veteran's treatment is constant. The examiner described the Veteran's ganglion as 1.5 centimeter of ganglion on the dorsum right wrist and dorsum right hand. The examiner stated that the Veteran's dermatitis affected none of the Veteran's total body area and none of the Veteran's exposed skin during the current examination. The examiner noted that the Veteran's ganglion of the dorsum of the right wrist/hand covered less than 5 percent of the total body and less than 5 percent of exposed area. The examiner further noted that the Veteran's combined skin conditions affected less than 5 percent of her total body combined and less than 5 percent of exposed areas. The examiner stated that the Veteran's skin condition did not impact her ability to work. At a January 2021 Board hearing, the Veteran reported that during flare-ups, her skin condition covers her face, neck, arms and upper chest. The Veteran also stated that when the rash appears, it causes issues of depression. The Veteran noted that the rash caused her an intense burning sensation spreading to across her face and her ears. She stated that the rash continues down her neck and to the top of her chest. She reported redness and itchiness on her forearms. The Veteran also reported that she takes consistent medication to prevent her skin condition from becoming uncontrollable. In an April 2021 VA examination, the examiner stated that the Veteran's atopic dermatitis had worsened since onset. The examiner noted that the Veteran's acne condition had resolved. The examiner reported that the Veteran used topical hydrocortisone for atopic dermatitis flare-ups for a duration of less than six weeks. The examiner also noted that the Veteran used oral antihistamines for a duration of less than six weeks. The examiner stated that the Veteran's dermatitis affected between 5 and 20 percent of her total body area and between 5 and 20 percent of her exposed area. The examiner described the appearance of the Veteran's dermatitis as red patches and discoloration scattered throughout the body. The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. The examiner stated that the Veteran's skin condition did not impact her ability to work. After review of the record, the Board finds that prior to April 16, 2021, a noncompensable rating is appropriate. During this period, the evidence indicates that the Veteran's service-connected dermatitis affected less than 5 percent of her total body area and less than 5 percent of her exposed area. The evidence does not indicate that the Veteran's skin condition affected at least 5 percent of the entire body or at least 5 percent of exposed areas are affected or resulted in intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12 month period. The Board acknowledges that, since April 2017, it is ascertainable that the Veteran used ketoconazole and desonide as topical skin treatment. The Board notes that the Federal Circuit pointed out that although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, that is not the case here. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). These medications are used topically over the affected area of the skin. Here, there is no indication in the record that the Veteran's medication was used other than locally to treat her skin condition, and the Veteran has not alleged that she used systemic therapy, to include oral medications, to treat her condition during this period. Moreover, the evidence this period since August 13, 2018 does not indicate that the Veteran's skin disability manifested in characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; characteristic lesions at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12-month period. Therefore, a 10 percent rating is not warranted under either the pre-amendment or amended criteria. From April 16, 2021 and thereafter, a rating in excess of 10 percent is not warranted. During this period, the evidence indicates that the Veteran's skin condition affects at least 5 percent but less than 20 percent of her total body area and at least 5 percent but less than 20 percent of her exposed area. The evidence also indicates treatment with oral antihistamines for less than six weeks. The evidence does not indicate that the Veteran's skin condition affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, and the evidence did not indicate systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of at least six weeks. Therefore, the Veteran's skin disability more closely approximates a 10 percent rating under the pre-amendment criteria. The Board has considered the application of the new diagnostic criteria from August 13, 2018 forward, but finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the new regulations as well. The evidence does not indicate that the Veteran's skin disability resulted in 20 to 40 percent of the entire body affected, 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. The new 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. Here, the evidence of record shows that the Veteran's treatment is topical because it is administered through the skin. As such, is not systemic therapy. It is noted that the new regulation applied to the second period on appeal (after April 16, 2021) is unfavorable to the Veteran. The Board notes that in reaching its conclusion, it applied the old regulation to both periods of appeal (before August 13, 2018 and from August 13, 2018 forward) to attempt to reach a favorable outcome for the Veteran, and unfortunately neither old nor new regulations permit a rating in excess of 0 percent prior to April 16, 2021 or a rating in excess of 10 percent for the Veteran since April 16, 2021. Therefore, higher ratings for the service-connected skin condition are not warranted. A higher evaluation is not warranted under a separate rating due to the Veteran's lack of scars or significant disfigurement of her head, face, and neck. In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of her symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent she argues her symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.