Citation Nr: 21070076 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-39 372 DATE: November 22, 2021 ORDER An initial compensable rating prior to March 30, 2020, and in excess of 10 percent thereafter for eczema is denied. FINDINGS OF FACT 1. Prior to March 30, 2020, the Veteran's eczema affected less than 5 percent of his entire body and exposed areas, and did not require more than topical therapy. 2. As of March 30, 2020, the Veteran's eczema affects less than 20 percent his entire body and exposed areas, and has not required more than topical therapy. CONCLUSION OF LAW The criteria for an initial compensable rating prior to March 30, 2020, and in excess of 10 percent thereafter for eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1983 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2014 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018 and April 2021, the Board remanded the claim on appeal for additional development and it now returns for further appellate review. Entitlement to an initial compensable rating prior to March 30, 2020, and in excess of 10 percent thereafter for eczema. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. For the entire appeal period stemming from July 23, 2013, the date of service connection, the Veteran's eczema is rated as noncompensably disabling prior to March 30, 2020, and 10 percent disabling thereafter pursuant to Diagnostic Code 7806. Prior to August 13, 2018, Diagnostic Code 7806 provides for a noncompensable rating where dermatitis or eczema affects 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-month period. A 10 percent rating is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118. While Diagnostic Code 7806 also provides that dermatitis or eczema may be rated as disfigurement of the head face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805) depending upon the predominant disability. In this regard, as will be discussed below, as the Veteran's eczema is not shown to result in such manifestations, it is properly rated under Diagnostic Code 7806. As of August 13, 2018, Diagnostic Code 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where no more than topical therapy is 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 less than 5 percent of exposed areas affected. A 10 percent rating is assigned where there are 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 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 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. The General Rating Formula for the Skin also provides that the disability may also be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. However, as noted previously, as the Veteran's eczema is not shown to result in such manifestations, it is properly rated under foregoing criteria. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the United States Court of Appeals for Veterans Claims (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 (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." 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, 30 Vet. App. 286 (2018), 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. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "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." The Veteran's claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable criteria; however, if an increased rating is warranted under the new criteria, such cannot be effective prior to the date of the amendment. However, the Federal Circuit's interpretation of the term "systemic therapy" in the old criteria applies throughout the entire period prior to the August 13, 2018, effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). Turning to the evidence of record, in June 2014 statements, the Veteran and his father reported that he has had many small dry blister marks, described as "bad spots" by his father, on the skin on his forehead and arms. At a November 2014 VA examination, the VA examiner diagnosed the Veteran with dyshidrotic eczema and noted that such was treated with topical steroid creams. Upon examination, it was noted that such skin disability did not cause scarring or disfigurement of the head, face, or neck, and the Veteran did not have any benign or malignant skin neoplasms or systemic manifestations due to such skin disease. The examiner indicated that he had been treated with constant or near constant use of topical corticosteroids in the past 12 months. The Veteran's eczema was noted to affect less than 5 percent of the total body area and exposed areas. In this regard, the examiner found that he had small blisters and red rash on the forearms and hands only. While the Veteran found the rash annoying and sometimes painful, such did not impact his ability to work. At the March 2018 Board hearing, the Veteran stated that he experienced flare-ups of his eczema when he is around a washing machine or if he went into the woods for a couple days or goes fishing. He reported that he was hospitalized for a week as his skin disability swelled up and he required antibiotics for a week. The Veteran also indicated that he has had spots on his hands, arms, elbows, and knees only. At a March 30, 2020, VA examination, the VA examiner diagnosed the Veteran with eczema, which had a scaly appearance and was located on his upper arm, hands, and legs. Upon examination, it was noted that the Veteran had been treated with constant or near constant use of topical hydrophilic cream in the past 12 months. The VA examiner found that his eczema affected 5 percent to 20 percent of the total body area and none of the exposed area. However, such disability did not have any visible characteristic lesions at the time of the examination, did not cause scarring or disfigurement of the head, face, or neck, and did not impact his ability to work. VA and private treatment records dated throughout the appeal period reflect that the Veteran's eczema is manifested by itchy, red patches on his skin, which affect his arms, legs, and ankles, and occasionally his truck, at times and, while he experiences flare-ups in the summer, such has been successfully treated with emollients, hydrocerin cream, Sarna lotion, Vaseline, urea, and triamcinolone. Such also reflect that he has separate disorders, to include delusions of parasitosis, MRSA+ furunculosis, and cellulitis, which has resulted in frequent infections that require antibiotics. Based on the foregoing, the Board finds that, prior to March 30, 2020, the Veteran's eczema affected less than 5 percent of his entire body and exposed areas, and did not require more than topical therapy and, as of such date, affects less than 20 percent his entire body and exposed areas, and has not required more than topical therapy. In this regard, the Board acknowledges the Veteran's report that his eczema flare-ups during the summer; however, based on the reported manifestations of such disability, finds that such does not affect a greater percentage of his entire body and/or exposed areas during either period on appeal. Moreover, the record shows that such disability has been treated with only topical therapy throughout the appeal period. In this regard, while the Veteran reported that he was recently hospitalized for skin complaints and treated with antibiotics at the March 2018 Board hearing, the record reflects that he has additional disorders that have resulted in skin infections that require antibiotics. Thus, a higher initial rating for the Veteran's eczema is not warranted for either period on appeal under Diagnostic Code 7806 as in effect before and after August 13, 2018. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his eczema is more severe than as reflected by the currently assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected eczema; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning additional staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. 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). Therefore, the Board finds that an initial compensable rating prior to March 30, 2020, and in excess of 10 percent thereafter for eczema is not warranted. In reaching such determination, the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's initial rating claim, such is not applicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.