Citation Nr: 21069751 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-41 881A DATE: November 19, 2021 ORDER An initial rating higher than 30 percent prior to June 22, 2021, for eczema with post inflammatory hyperpigmentation of forehead, cheeks and neck (skin disability) is denied. FINDING OF FACT The evidence of record reflects that, during the appeal period prior to June 22, 2021, the Veteran's skin disability was not more nearly manifested by 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 during the past 12- month period. CONCLUSION OF LAW The criteria for a rating higher than 30 percent prior to June 22, 2021, for skin disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to September 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In April 2021, the Board remanded the appeal for additional evidentiary development. During remand status, a July 2021 rating decision granted a 60 percent rating for skin disability from effective June 22, 2021 (the date of recent examination). As the award represents the maximum schedular rating under the rating schedule for this disability from June 22, 2021, but not prior thereto, the appeal remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). See also Correspondence (July 2021) (indicating that the Veteran seeks a 60 percent rating for the entire appeal period). The Board finds that there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a rating higher than 30 percent prior to June 22, 2021, for skin disability. A January 2014 rating decision granted service connection for eczema with post inflammatory hyperpigmentation of the forehead, cheeks, and neck, and assigned a 30 percent rating from February 11, 2013. See Rating Decision (January 2014). This appeal arises from the Veteran's disagreement with the initial disability rating assigned. Thereafter, a July 2021 rating decision granted a 60 percent rating for the Veteran's eczema disability based on the June 2021examination findings that there was skin involvement involving more than 40 percent of the entire body. The June 2021 Skin Disease Disability Benefits Questionnaire reflects a diagnosis of eczema with post inflammatory hyperpigmentation of the torso, extremities and back, noting "Date of diagnosis: 1992". The Veteran contends that a 60 percent rating is warranted for the entire appeal periodthat is from February 11, 2013. See Correspondence (July 2021). The Board concludes that the criteria for a rating in excess of 30 percent for the period from February 11, 2013, to June 22, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7806 (2017); 38 C.F.R. § 4.118, General Rating Formula for the Skin, (as amended effective from August 12, 2018). The Veteran's skin disability is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Ratings are assigned based on the percentage of skin involvement OR the time needed for systemic therapy such as corticosteroids or other immunosuppressive drugs. The rating criteria for the skin were revised, effective 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. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32592 (July 13, 2018) (to be codified at 38 C.F.R. § 4.118). 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 Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable 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 (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). After August 13, 2018, DC 7806 are rated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. The formula provides for a 10 percent rating where there is 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, 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. A 30 percent rating is assigned where there are characteristic lesions involving 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 maximum 60 percent rating is warranted where there are 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, PUVA, or other immunosuppressive drugs required over the past 12 month period. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one 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, 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. 38 C.F.R. § 4.118(a). Upon review of the totality of the record, the Board finds that a rating higher than 30 percent prior to June 22, 2021, for skin disability is not warranted. The Board has reviewed the December 2013 VA examination, as well as the Veteran's VA outpatient treatment records and private medical records. These records show that the Veteran had atopic dermatitis/eczema of back, trunk, and bilateral arms and legs. Hyperpigmentation caused by the rash was not scarring, and pigmentation would return to normal within the year. The Veteran reported constant/near-constant use of topical steroids (OTC hydrocortisone) prior to being prescribed triamcinolone (TAC) cream in August 2015. Prior to the June 22, 2021, VA examination, private dermatology records reflect that atopic dermatitis covered 15 to 30 percent of the Veteran's total body area. None of these records support a finding that either the total body area or exposed body area affected by the Veteran's skin disability was more than 40 percent, as required by a 60 percent rating under the old Diagnostic Code 7806 and the General Rating Formula for the Skin. Additionally, the preponderance of the evidence weighs against a finding that the Veteran's skin disability has been treated with systemic therapy at any time from February 11, 2013, to June 22, 2021. While the available records reflect that the use of topical medications, such as TAC cream, hydrocortisone 10% cream, and Eucerin cream, these are not a systemic therapy. See Burton, 30 Vet. App. 286 (2018). In support of this conclusion, the Board notes that the June 2021 VA examination report shows that the Veteran had "never been on systemic therapy." See C&P Exam (June 2021). Treatment was through constant or near-constant use of topical corticosteroids and lotions, such as TAC cream, hydrocortisone 10 cream, and Eucerin cream. The contemporaneous VA medical opinion (VAMO) reports that the topical steroids used by the Veteran are synonymous to corticosteroids and treat skin inflammation at the skin level not systemically. Competent, credible evidence indicating that his treatment was of such scale that it affected his body as a whole has not been presented, nor has it been argued by the Veteran or his representative. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Burton v. Wilkie, 16-2037 (September 28, 2018). See also Appellate Brief (September 2021). Because the total body area and the total exposed area of the Veteran's service-connected skin disability was not more than 40 percent, and the evidence does not support a finding that he received systemic therapy for his condition, a 60 percent rating is not warranted under any version of Diagnostic Code 7806 for the rating period from February 11, 2013, to June 22, 2021. Additionally, as the December 2013 and June 2021 VA examinations found that the Veteran's skin disability caused temporary redness (hyperpigmentation) but not scarring, the Board finds that rating the Veteran's eczema as scars under Diagnostic Codes 7801, 7802, 7804, or 7805 is not appropriate. For the above reasons, the preponderance of the evidence weighs against entitlement to a rating higher than 30 percent for service-connected skin disability from February 11, 2013, to June 22, 2021. The Board acknowledges the Veteran's representative's August 2021 argument that an effective date for the award of the 60 percent rating should be earlier than June 22, 2021 as the laws pertaining the assignment of effective dates include a provision for an earlier date based on the date of the disability is factually ascertainable. See Appellate Brief at 3 (September 2021). However, as explained above, albeit is within the framework of a claim for increase, there is no basis for the assignment of a 60 percent rating prior to June 22, 2021. Indeed, there is no basis further to stage the rating during period from February 11, 2013, to June 22, 2021as the factual findings do show a distinct period where the service- connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001) (staged ratings are warranted where the factual findings show a distinct period where the service- connected disability exhibited symptoms that would warrant different ratings). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.