Citation Nr: 21071186 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-06 739 DATE: November 30, 2021 ORDER Entitlement to a compensable evaluation for bilateral hand dermatitis prior to January 25, 2015, is denied. Entitlement to an evaluation in excess of 10 percent for bilateral hand dermatitis for the period from January 25, 2015, to May 30, 2019, is denied. Entitlement to a compensable evaluation for bilateral hand dermatitis on or after May 30, 2019, is denied. FINDINGS OF FACT 1. Prior to January 25, 2015, the Veteran's bilateral hand dermatitis affected less than 5 percent of the entire body or less than 5 percent of the exposed areas affected and required no more than topical therapy. 2. For the period from January 25, 2015, to May 30, 2019, the Veteran's bilateral hand dermatitis was assigned a 10 percent evaluation based upon use of intermittent systemic therapy required for a total duration of less than six weeks during the past 12-month period. The disability did not affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected and did not require systemic therapy for a total duration of six weeks or more. The evidence also does not show that the disability required systemic therapy, including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs for a duration of 6 weeks or more, but not constantly. 3. Since May 31, 2019, the Veteran's bilateral hand dermatitis affected less than 5 percent of the entire body or less than 5 percent of the exposed areas affected and required no more than topical therapy. CONCLUSIONS OF LAW 1. Prior to January 25, 2015, the criteria for a compensable evaluation for bilateral hand dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806 (2017). 2. For the period from January 25, 2015, to May 30, 2019, the criteria for an evaluation in excess of 10 percent evaluation for bilateral hand dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806 (2017) (and as amended effective August 13, 2018). 3. On or after May 31, 2019, the criteria for a compensable evaluation for bilateral hand dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806 (2017) (and as amended effective August 13, 2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 2001 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript of that hearing has been associated with the claims file. The Board previously remanded the case for further development in November 2018 and April 2021. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is currently assigned a noncompensable evaluation prior to January 25, 2015, a 10 percent evaluation from January 25, 2015 to May 30, 2019, and a noncompensable evaluation from May 31, 2019, for his service-connected bilateral hand dermatitis, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806. During the pendency of the appeal, the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 was amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). These amendments revised Diagnostic Codes 7806 and 7813, to state that disabilities evaluated under these Diagnostic Codes should be evaluated under the General Rating Formula for the Skin. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. Under the amended criteria, the General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is 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 will be warranted where there is 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, 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 will be warranted where there is at least one of the following: 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 will be warranted where there is 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. The General Rating Formula further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805). Prior to the regulatory change effective August 13, 2018, Diagnostic Code 7806 stated that a noncompensable evaluation is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or exposed areas affected and no more than topical therapy required during the past 12-month period. A 10 percent evaluation is warranted for dermatitis or eczema affecting 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; 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 evaluation is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; 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 evaluation is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Diagnostic Code 7806 in effect prior to August 13, 2018, also indicated that the dermatitis or eczema may also be evaluated as disfigurement of the head, face, or neck or pursuant to the Diagnostic Codes relevant for rating scars, depending on the predominant disability. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his bilateral hand dermatitis. VA treatment records show that the Veteran seen in May 2014 for his dermatitis, which he reported was painful. The provider observed patches of thickened, discolored skin with one area of blisters on the right hand. Other small patches of dry and peeling skin were also seen. The Veteran was given betamethasone ointment for treatment. During another appointment in May 2014, the Veteran reported experiencing intermittent pain, swelling, and a burning sensation to the palm of the right hand during the past five years. Later that month, medical records indicated use of topical medications for hand dermatitis, including mupirocin, triamcinolone, and Lac-hydrin. During a September 2014 VA medical appointment, the Veteran reported that skin peeling of the right hand would occur two to three times per year. He stated that he had been seen by the emergency room for the issue, but a date was not provided. The provider noted that the skin peeling resolved with treatment and that the skin was clear upon examination. The Veteran had an area of affected skin on the right palm in June 2015. At that time, steps were being taken to renew the Veteran's prescribed topical cream. Betamethasone ointment was again renewed during a VA medical appointment in July 2016 after the Veteran was seen for blisters on his hands. During that appointment, the Veteran reported that the skin on the palms of his hands and sides of his fingers would develop small blisters and peel approximately every three to four months. During an August 2016 follow-up appointment, the medical provider noted a couple areas of peeled skin on the right hand/palm, but indicated that the problem had mostly resolved. The Veteran reported that the issue occurred approximately twice per year and found the prescribed cream helpful. During a January 2018 appointment, the Veteran reported having dryness on his hands, which would start as blisters and subsequently peel. He was not having blisters at that time, but reported having pain in several PIP joints bilaterally. A Medrol Dosepak and hydrophilic ointment were ordered for the hands. The Veteran was seen again in May 2018 at which time he reported another occurrence of his hand dermatitis during which he had clear vesicles that would become brown, drain, and then peel. He also reported burning pain in these areas. The provider noted that it was hard to see the problem clearly, as the Veteran's hands were already peeling and he had only one small area of raised vesicles, so he advised the Veteran to take photos of the hands before they started to peel. Later that month, a medical note indicated that a dermatologist had reviewed photographs of the Veteran's hands and identified the problem as dyshidrotic eczema. The provider then recommended the use of Vaseline twice per day and fluocinonide, a steroid cream, twice per day. During the July 2018 hearing, the Veteran again reported having episodes of blister formation, drainage, and peeling of the skin. He stated that the condition was painful and that he sometimes feared getting an infection while the blisters were draining due to the nature of his job at a hospital. During an appointment in May 2019, the Veteran requested a refill of his hand cream, and some flaking was noted. The Veteran was afforded a VA examination in connection with his claim in May 2019. At that time, the Veteran reported experiencing approximately three episodes per month, which would last approximately a week and a half. During such episodes, he stated that painful blisters would form on both of his palms and fingers. The blisters would then turn dark and drain, and the blister remnants would then peel. Upon evaluation, the examiner found that the dermatitis affected less than 5 percent of the total body area and the exposed area. He also indicated that the Veteran's dermatitis was treated with topical medications for 6 weeks or more, but not constantly. He noted that the skin disorder did not cause scarring or disfigurement of the head, face, or neck. The examiner further noted that the condition did impact the Veteran's ability to work in that the Veteran could not hold or handle objects during the time of the rash due to hand and finger pain. VA medical records show that the Veteran reported a firm lump on his right third finger in August 2019. There was no redness, but there was pain with palpitation at the site. In May 2021, a VA examiner found that the medications used to treat the Veteran's bilateral hand dermatitis during the appeal period were: Betamethasone Valerate 0.1% ointment, a topical steroid, prescribed for 30 days in May 2014; Betamethasone Dipronate 0.05% ointment, a topical steroid, prescribed for 30 days in July 2016; Methylprednisolone Dose3 Pak, an oral steroid, prescribed for 5 days, in January 2018; Hydrophilic topical moisturizer ointment, which was not a steroid and not an immunosuppressive, prescribed for 30 days in January 2018; Fluocinonide 0.05% cream, a topical steroid, prescribed for 30 days in May 2018, Petrolatum ointment, a topical moisturizer and not a steroid or an immunosuppressive, prescribed for 30 days in May 2018, and hydrophilic topical moisturizer cream (Eucerin equivalent) and not a steroid or an immunosuppressive, prescribed for 30 days in May 2019. The May 2021 VA examiner opined that the topical agents prescribed to the Veteran for his bilateral hand disorder were local in nature and would not affect the body as a whole. He also opined that the Methylprednisolone Dose3 Pak prescribed for five days was taken orally and was a systemic therapy; however, he stated that, given its short duration, the medication would not have resulted in any long-term systemic effects. Prior to January 25, 2015 The Board finds that a compensable evaluation is not warranted for the Veteran's bilateral hand dermatitis prior to January 25, 2015, as the evidence for this time period does not show that the Veteran's skin disorder affected more than 5 percent of his entire body or required more than topical therapy. Thus, a compensable evaluation prior to January 25, 2015, is not warranted. The Board has also considered other potentially applicable Diagnostic Codes. However, there is no indication that the Veteran's hand dermatitis caused scarring or disfigurement during that time period. As such, an increased rating is not for application based upon Diagnostic Codes 7800 to 7805. The Board has also considered the Veteran's testimony that the condition causes pain. However, the Board finds that such contentions do not support an increased evaluation, as there is no evidence of functional impairment or physical limitation due to such symptoms during this time period, and the Veteran's skin condition was noted to be inactive or intermittent at several times during this period. As the revised criteria for evaluating the skin can only be applied effective from August 13, 2018, they do not assist the Veteran for this time period. From January 25, 2015, to May 30, 3019 The Veteran's bilateral hand dermatitis is currently assigned a 10 percent evaluation for the period from January 25, 2015, to May 30, 2019. After a review of the evidence of record, the Board finds that the evidence does not show that the Veteran's skin disorder warrants an evaluation in excess of 10 percent for that period. The condition did not affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Further, while the Veteran was prescribed an oral steroid for his skin disorder during this period, the evidence shows that this systemic therapy was prescribed for 5 days and not for a total duration of six weeks or more. The evidence also does not show that the Veteran's skin disorder required systemic therapy, including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs for a duration of 6 weeks or more, but not constantly, during the relevant time period under the amended rating criteria. The Board has also considered other potentially applicable Diagnostic Codes. However, there is no indication that the Veteran's skin disorder caused scars or disfigurement, and the May 2019 VA examiner specifically reported that there was no such disfigurement or scarring. As such, an increased rating is not for application based upon Diagnostic Codes 7800 to 7805. The Board has also considered the Veteran's testimony that the condition causes pain. However, the Board finds that such contentions do not support an increased evaluation, as there is no evidence of functional impairment or physical limitation due to such symptoms warranting a compensable evaluation during the relevant period. Indeed, during his July 2018 hearing, the Veteran reported that while painful, he was able to continue his employment during this time period. For these reasons, the Board concludes that an evaluation in excess of 10 percent is not warranted for this time period. On or After May 31, 2019 The Board finds that a compensable evaluation is not warranted for the Veteran's skin disorder on or after May 31, 2019, under the old or revised rating criteria. Specifically, there is no evidence that the Veteran's skin disorder affected more than 5 percent of his entire body or required more than topical therapy. The Board has also considered other potentially applicable Diagnostic Codes. However, there is no indication that the Veteran's skin disorder caused scars or disfigurement on or after May 31, 2019, and the May 2019 VA examiner specifically reported that there was no such disfigurement or scarring. As such, an increased rating is not for application based upon Diagnostic Codes 7800 to 7805. The Board has also considered the Veteran's testimony that the condition causes pain, as well as the October 2020 brief submitted by his representative wherein it is noted that the condition causes pain. However, the Board finds that such contentions do not support an increased evaluation because there is no evidence of functional impairment or physical limitation due to such symptoms. Although the May 2019 VA examiner reported that the Veteran was unable to hold or handle objects while he had a hand rash, the VA examiner also found no other pertinent physical findings, complications, conditions, signs, or symptoms of the hand disorder and made notations regarding restricted movement in the hands. There was also no treatment for the disorder during this time period, except for topical creams. Further, while difficulties with the Veteran's employment were reported during this period, they involved a separate service-connected disability. As such, the Board finds that the overall evidence of record does not warrant an increased evaluation. For these reasons, the Board finds that a compensable evaluation is not warranted on or after May 31, 2019. Conclusion In reaching this determination, the Board acknowledges the contention of the Veteran's representative that his bilateral hand dermatitis is more severe than the criteria provided by the rating schedule. See August 2021 appellate brief. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id. Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321 (b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluations with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. As such, it cannot be said that the available schedular evaluations for these disabilities are inadequate. Moreover, the Veteran and his representative have not identified any specific symptomatology not contemplated in the rating schedule. The Board further notes that the Court has held that the amended version of 38 C.F.R. § 3.321(b), eliminating the possibility of extraschedular consideration based on the collective impact of multiple service-connected disabilities, applies retroactively to all cases pending before VA. See Thurlow v. Wilkie, 30 Vet. App. 231 (2018). Based on the foregoing, it cannot be said that the available schedular evaluation is inadequate. Accordingly, referral for extraschedular consideration is not warranted. See Thun, 22 Vet. App. at 115-16. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.