Citation Nr: 21071479 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-03 278 DATE: November 30, 2021 ORDER From May 24, 2010, a rating of 30 percent, but not higher, for hidradenitis suppurativa (a skin disorder) is granted. REMANDED A separate rating for other symptoms potentially related to hidradenitis suppurativa. FINDING OF FACT The Veteran's skin disorder approximates involvement of 20 to 40 percent of his entire body; the disorder does not approximate more than 40 percent of the entire body or constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs required during a 12-month period. CONCLUSION OF LAW From May 24, 2010, the criteria for a 30 percent rating, but not higher, for a skin disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to June 1992. The case is on appeal from a June 2012 rating decision. In August 2017, the Veteran testified at a Board hearing. In a June 2020 decision, the Board denied a rating in excess of 10 percent for the skin disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). Pursuant to a May 2021 Joint Motion for Remand (JMR), the Court vacated the Board's decision by a June 2021 Order and remanded the case back to the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 10 percent for a skin disorder. Legal Criteria 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. DC 7806 provides that where there is 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 noncompensable evaluation 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 affected, or; intermittent systemic therapy such corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period, a 10 percent rating is assigned. Where there is 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 30 percent rating is assigned. Where there is 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, a 60 percent rating is assigned. 38 C.F.R. § 4.118, DC 7806. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were substantively amended. See 83 Fed. Reg. 32592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised DCs 7806 and 7813, to state that disabilities evaluated under these DCs should be evaluated under the General Rating Formula for the Skin. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. In Warren v. McDonald, the Court held that "systemic therapy" for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is "like" a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. 28 Vet. App. 194 (2016). In Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the "use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case" under the old criteria for 38 C.F.R. § 4.118, DC 7806. 862 F.3d 1351, 1356 (Fed. Cir. 2017). The Federal Circuit noted that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court interpreted Johnson to mean that when determining whether topical treatment for a skin disorder constitutes systemic therapy, such as corticosteroids or other immunosuppressive drugs, it must be determined (1) whether the topical treatment operates by affecting the body as a whole in its treatment of the condition at issue, and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Id. at 286. Accordingly, consideration must be given to how a topical treatment works and how it affects the body as a whole, not the size of the skin area it is applied to. Facts Following the Veteran's May 2010 claim, the Veteran was afforded a January 2011 VA examination in which he was diagnosed with cystic acne, sebaceous cysts and a history of skin abscesses. The examiner indicated the Veteran's treatment included the antibiotic medications Rifampin and Septra. He reported the type of treatment is neither a corticosteroid nor an immunosuppressive medication. On examination, the examiner noted he has diffuse acne scarring over approximately 25 percent of the total body area and had 5 non-infected sebaceous cysts on his back. The Veteran submitted a May 2011 statement in which he reported that when he gets an abscess, he loses his appetite, and feels nauseous, agitated, anxious, feverish and weak. He stated his doctors prescribe painkillers and antibiotics for the skin disorder. The Veteran was afforded a January 2014 VA examination in which the examiner noted a long history of recurrent hidradenitis of the neck, groin and buttock areas. The examiner indicated his current treatment includes hot compresses, as well as taking constant or near-constant doxycycline, an antibiotic. The examiner noted he had taken the medication for less than 6 weeks in the previous 12 months. The Veteran reported he experiences illness with the formation of boils, including pain, low grade fever, nausea, loss of appetite and general malaise. The examiner further indicated the total body area affected was listed as 5 to 20 percent; however, he reported the only active abscess was on the Veteran's buttock with no active boils on the face, neck, axillae or groin. The examiner noted the Veteran's functional impact included causing him to miss work due to the symptoms. The Veteran underwent another VA examination in March 2014 in which the examiner similarly indicated the Veteran used no topical treatment for his skin disability but used oral antibiotics, as noted above. The Board notes the Veteran has received VA treatment for his skin disability throughout the appeal period. A VA treatment record from July 2012 indicated the Veteran had a large abscess on his left buttocks which was very painful, including pain noted at 10 out of 10. The examiner reported the Veteran has innumerable small and large abscesses, mostly staph, from his neck to buttocks. The examiner stated the Veteran experiences mild nausea related to his pain, along with fever and chills. A November 2013 VA record indicated the Veteran has a history of abscesses and on examination, had a golf ball size skin lesion in the area of his throat. The examiner noted symptoms of throbbing headaches and nausea. Further, a September 2017 VA record stated the Veteran had an inflamed cyst on his back for one month, which had worsened. The examiner noted the Veteran tried to open the cyst with a razor and upon opening, "a string shot out." The examiner indicated he has recurrent abscesses with fever, chills, nausea and simply "felt bad." The Veteran was afforded an August 2017 Board hearing in which he testified that treatment for his skin disability included having his frequent abscesses cut open and drained, as well as taking antibiotics. He stated he has undergone so many surgeries for his skin disorder that his abscesses come back after a surgery and will drain on their own. The claim came before the Board in May 2018 and was remanded for further development, including a VA examination. The Veteran was afforded a February 2019 VA examination in which the examiner indicated his skin treatment included topical antibacterial soap, antibiotic medication and surgical excisions. The examiner indicated his condition persisted and had spread to multiple areas of the body, worsening with warm weather. She noted his current treatment consisted of self-treatment only and that he received no treatment through medication in the previous 12 months. She stated the Veteran has active visible, palpable and depressed/raised lumps and bumps which are mildly inflamed and painful. She indicated his total body exposed area approximates less than 10 percent of hidradenitis suppurativa and less than 10 percent of acne. She opined the total body area involved in all skin conditions is 5 to 20 percent. As noted above, the Board denied a skin disorder rating in excess of 10 percent in June 2020. The Veteran appealed the decision to the Court and pursuant to a May 2021 JMR, the Court vacated the Board's decision and remanded the issue back to the Board. The JMR indicated that all the relevant evidence of record must be addressed by the Board, including whether a separate rating is warranted or a rating under a different diagnostic code. Additionally, the Veteran's representative submitted an October 2021 brief which supports that a 30 percent skin rating is warranted under DC 7806. It noted the evidence supports that the Veteran's skin disorder impacts at least 20 percent of his body and that he has ongoing characteristic lesions, suggestive of an increased rating. The representative stated the skin disorder covers the Veteran's entire back and buttocks, and at times, his neck, ears and genitals. Analysis After a review of the evidence, the Board determines an increased schedular rating to 30 percent, but not higher, for the skin disorder is warranted. In this regard, the medical evidence of record, including the VA examination reports and VA treatment records, supports that the Veteran's skin disability approximates an affected area of 20 to 40 percent of his entire body. Further, while the need for systemic therapy, including with corticosteroids or other immunosuppressive drugs has not been shown, the Veteran's symptoms rise to the level of a 30 percent rating under DC 7806. The Board notes the January 2011 VA examination revealed the Veteran has diffuse acne scarring over approximately 25 percent of the total body area and had 5 non-infected sebaceous cysts on his back. The January 2014 VA examiner reported he has a long history of recurrent hidradenitis of the neck, groin and buttock areas. The February 2019 examiner indicated his skin disorder persisted and has spread to multiple areas of the body, worsening with warm weather. Further, the October 2021 brief in support from the Veteran's representative asserts that the skin disorder impacts at least 20 percent of his body and that he has ongoing characteristic lesions, supportive of an increased rating to 30 percent. She stated the skin disorder covers the Veteran's entire back and buttocks, and at times, his neck, ears and genitals. In this regard, the Board tends to agree with the Veteran's representative. While there is no specific medical opinion that states the skin disability affects 20 to 40 percent of the Veteran's entire body, when affording him all reasonable doubt, the Binds finds his skin condition approximates such, and that an increased rating to 30 percent is warranted for the entire appeal period. While an increased rating to 30 percent is supported, an even higher increase to 60 percent is not warranted on a schedular basis. There are no objective findings during the appeal period that his skin disorder affected an area of 40 percent or more of his entire body or exposed areas. Moreover, his treatment, including antibiotic medication, is not considered constant or near-constant systemic therapy including corticosteroids. In sum, the Veteran's skin disorder approximates involvement of 20 to 40 percent of his entire body and therefore, an increased rating to 30 percent is appropriate. The benefit of the doubt has been applied in the Veteran's favor and the preponderance of the evidence is against an even higher rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As such, a schedular rating of 30 percent, but not higher, for the skin disorder is warranted. REASONS FOR REMAND A separate rating for other symptoms potentially related to hidradenitis suppurativa. The May 2021 JMR notes that the Board did not sufficiently address whether a separate rating is warranted. In an October 2021 brief, the Veteran's representative argued that an extraschedular rating should be warranted. Both of these documents reference potential symptoms of abscesses, loss of appetite, nausea, weakness, fever, chills, malaise and fatigue. It is more proper to rate separately under a separate DC when covered by the Rating Schedule than refer for an extraschedular rating. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Only if a symptom is not in the entire Rating Schedule, does extraschedular become an avenue for a higher rating. Additionally, for psychiatric symptoms a diagnosis is required. And the symptom must indeed be related to the underlying service-connected condition being rated. A remand is warranted for further development in this regard. The Board notes that anxiousness was also listed as a potential symptom. A diagnosis is required for mental health symptoms. See Martinze-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). The Veteran already has a diagnosis for which he is service connected in posttraumatic stress disorder (PTSD). As the condition is already rated at 70 percent for all psychiatric impairment, a separate psychiatric rating would not be warranted under 38 C.F.R. § 4.14 for the same symptoms. The matters are REMANDED for the following action: 1. Schedule a VA examination in connection with the Veteran's skin disorder rating claim. The examiner should address whether there are related symptoms, including specifically the following: abscesses loss of appetite nausea weakness fever chills malaise fatigue 2. For any symptoms that are found to be related to the Veteran's skin disorder, adjudicate whether the symptom is contemplated by DC 7806 and whether a separate rating is warranted under a different DC. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.