Citation Nr: A21019062 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 191212-61713 DATE: November 30, 2021 ORDER A compensable rating for bilateral hyperkeratinization and eczema of the feet, evaluated as noncompensable as of October 1, 2019, is denied. FINDINGS OF FACT 1. The RO's July 2019 rating decision, which reduced the Veteran's rating for his service-connected bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable, effective October 1, 2019, considered the required regulatory provisions and afforded the Veteran all required due process. 2. The Veteran's service-connected bilateral hyperkeratinization and eczema of the feet, is not shown to have been productive of localized or episodic cutaneous involvement, nor has treatment of it required intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of less than six weeks during a twelve-month period on appeal. CONCLUSIONS OF LAW 1. The RO's July 2019 rating decision, which reduced the Veteran's rating for his service-connected bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable, effective October 1, 2019, was proper; restoration of the 60 percent rating is not warranted. 38 C.F.R. § 3.655. 2. The criteria for a compensable rating for service-connected bilateral hyperkeratinization and eczema of the feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7806, 7824. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2019, the Veteran filed a VA Form 10182 Notice of Disagreement and selected the AMA review hearing lane. In May 2021, he was afforded a hearing before the undersigned. Accordingly, in adjudicating the issue, the Board is required to consider the evidence of record at the time of RO's July 2019 rating decision, evidence submitted by the Veteran at the hearing, as well as evidence submitted within 90 days following the hearing. 38 C.F.R. § 20.302 (b). 1. Evaluation of bilateral hyperkeratinization and eczema of the feet, which is currently evaluated 60 percent disabling, is decreased to 0 percent effective October 1, 2019. In April 2012, the RO granted service connection for bilateral hyperkeratinization and eczema of the feet, evaluated as 60 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In March 2018, the Veteran filed a claim for an increased rating. See Veteran's VA Form 21-526EZ, received in March 2018. In May 2018, the RO notified the Veteran that it proposed to reduce his rating for his bilateral foot disability to noncompensable, because the evidence showed sustained improvement with only antifungal treatments prescribed for at least the last two years, no evidence of the need for systemic medications, and his skin symptoms were not shown to have affected 5 percent or more of his overall skin. In July 2019, the RO reduced the Veteran's rating for his bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable, with an effective date of October 1, 2019. Given this history, the Board will first determine whether the RO's reduction was proper, and, if so, whether the criteria for a compensable rating have been met. Propriety of the RO's reduction of the Veteran's rating for bilateral hyperkeratinization and eczema of the feet, from 60 percent to noncompensable, effective October 1, 2019. The Veteran argues that the reduction was unwarranted. He argues that his foot symptoms are "incurable," and that his symptoms include pain, numbness, cracking, peeling skin, dry feet, and fungus, and locking and arthritis of the toes. He also argues that the reduction has been "economically devastating." See Veteran's letter, received in December 2019; transcript of hearing, held in May 2021. The Veteran has also submitted photographs of his feet. A statement from the Veteran's spouse, received in December 2019, shows that she states that the Veteran's foot condition is incurable, and that he has constant numbness, pain, cracking and peeling skin, dry feet, and athlete's foot. She also essentially argues that the reduction is economically unfair. With regard to the history of the disability in issue, following separation from service, VA progress notes included problem lists noting dermatophytosis of the feet, generalized hyperhidrosis, and acquired keratoderma. Treatment included topical creams clotrimazole and aluminum chloride hexahydrate. See 38 C.F.R. § 4.1. The RO has evaluated the Veteran's skin disorder under 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7899-7824. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). This hyphenated diagnostic code may be read to indicate that a skin disorder is the service-connected disorder, and it is rated as if the residual condition is a disease of keratinization under DC 7824. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. Under the pre-August 13, 2018 version of DC 7824, a noncompensable rating is warranted for keratinization if it requires no more than topical therapy during the past twelve-month period. A 10 percent rating is warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of less than six weeks during the past twelve-month period. Id. A 30 percent rating is warranted where there is either generalized cutaneous involvement or systemic manifestations, and; intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of at six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where there is either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period. Under the new criteria, DC 7824 continues to apply to diseases of keratinization, but it is rated under the General Rating Formula for the Skin (Formula). The General Rating Formula, a noncompensable evaluation is assigned if there are characteristic lesions involving less than 5 percent of the entire body affected or less than 5 percent of the exposed area affected, and in either case, no more than topical therapy has been required over the past 12-month period. A rating of 10 percent is assigned when there are (i) characteristic lesions involving at least 5 percent but less than 20 percent of the entire body affected, or (ii) at least 5 percent but less than 20 percent of the exposed area is affected, or (iii) there is 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 rating of 30 percent is assigned when there are characteristic lesions involving 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, or there is 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 over, but not constantly, over the past 12-month period. A rating of 60 percent is assigned if there are characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of the 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, has been required over the past 12-month period. 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. Courts have issued several decisions regarding the meaning of the term "systemic therapy such as corticosteroids or other immunosuppressive drugs." In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit 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 Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (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. Under 38 C.F.R. § 3.105 (e), a reduction in an evaluation of a service-connected disability only requires special adjudication if "the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made." Thus, the special reduction requirements only apply when the appellant will receive less money as the result of the evaluation reduction. See O'Connell v. Nicholson, 21 Vet. App. 89, 93-94 (2007); VAOPGCPREC 71-91, 57 Fed. Reg. 2,316 (1992). The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. See 38 C.F.R. § 3.344 (c). The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five-year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period. Although the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993). This regulation also provides that ratings on account of diseases subject to temporary or episodic improvement, e.g., many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. It appears that the procedural safeguards have been met. Specifically, when a reduction in evaluation is considered warranted, a rating proposing a reduction will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In this case, the Veteran was afforded two VA examinations (of the feet and skin) in March 2018. In May 2018, the RO issued a proposed reduction of the rating for the Veteran's bilateral hyperkeratinization and eczema of the feet, that would reduce his rating to noncompensable and reduce his combined evaluation. Id. The Veteran was afforded 60 days to respond. In July 2019, the RO effectuated the proposed reduction, and reduced the Veteran's rating for bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable, with an effective date of October 1, 2019. The medical evidence is summarized as follows: VA progress notes, dated beginning in 2015, indicate that the Veteran was taking Terbinafine HCL cream for feet and toenails, ammonium lactate "for dry skin," Clotrimazole for his feet and the areas between his toes, and urea cream for his feet. All medications have associated notations that application is to be made "to affected area." He was noted to have chronic bilateral tinea pedis with dystrophic toenails, and calluses. In 2017, the Veteran reported a history of a back injury "a couple of years ago," and symptoms that included foot pain, numbing, and tingling. A VA skin diseases disability benefits questionnaire (DBQ), dated in March 2018, shows the following: The Veteran was noted to have a history of eczema and keratinization skin disorder. The Veteran does not have any systemic manifestations due to any skin diseases. The Veteran has been treated with Purell lotion OTC (over the counter), Ammonium Lactate, and Terbinafine hydrochloride cream, on a constant or near-constant basis. The Veteran was not noted to have a history of use of systemic corticosteroids or other immunosuppressive medications, or immunosuppressive retinoids, or other oral medications. The Veteran was not noted to have had any debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The total body area affected was less than five percent, with no exposed area affected. There was no impact on the Veteran's ability to work. The diagnoses was bilateral hyperkeratinization and eczema of the feet. A VA foot conditions DBQ, dated in March 2018, shows that the Veteran complained of pain in his right fourth toe, bilateral foot pain, to include with walking long distances and prolonged standing, as well as numbing, cramping, and tingling of the bilateral feet. The diagnosis was pes planus. His symptoms were noted to include pain on movement and weight bearing, disturbance of locomotion, and interference with standing. In April 2012, the RO granted service connection for bilateral hyperkeratinization and eczema of the feet. The RO determined that the Veteran met the criteria for a 60 percent evaluation under DC 7824, and accordingly assigned a 60 percent rating. In July 2019, the RO stated that the Veteran had not, in fact, met the criteria for a 60 percent rating in April 2012, but that it would not disturb that rating. Rather, the RO reduced the Veteran's rating to noncompensable, effective October 1, 2019. The circumstances of this restoration issue are therefore relatively unusual, in that according to the RO, the Veteran was assigned a higher disability rating than was factually warranted at the time of the grant of service connection, and this raises the question as to what the proper baseline for the Veteran's disability is to be used in the restoration analysis. The Board finds that the determination as to whether or not there has been "actual change" and "improvement" in the Veteran's condition is most accurately determined by first determining whether or not the criteria for a 60 percent rating under DC 7824 are still met, and, if not, at what level the criteria are currently met for a lower disability rating, followed by a determination as to whether or not there is sufficient evidence of sustained improvement. The Board finds that the RO had an adequate basis for its conclusion that the evidence showed consistent and sustained improvement of the Veteran's bilateral hyperkeratinization and eczema of the feet, and that it properly reduced the Veteran's rating for bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable. The criteria for a 60 percent rating are not shown to have been met under either the new or the old version of DC 7824. The Veteran is not shown to have generalized cutaneous involvement or systemic manifestations, or to have required constant or near-constant systemic therapy or medication in a 12-month period, nor is he shown to have characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of the exposed areas affected. With regard to systemic manifestations, these are not shown. The March 2018 DBQ shows that the examiner indicated that the Veteran does not have any systemic manifestations due to any skin diseases. With regard to a need for constant or near-constant systemic medication, the Veteran is shown to have required use of topical medications for control of dry skin and fungus. His medications are not shown to constitute systemic therapy, i.e., treatment pertaining to or affecting the body as a whole. Johnson; Burton. The March 2018 DBQ shows that the Veteran was not noted to have a history of use of systemic corticosteroids or other immunosuppressive medications, or immunosuppressive retinoids, or other oral medications. With regard to the current level of disability, as noted infra, the criteria for even a compensable rating are not shown to have been met under DC 7824. The Veteran is not shown to have localized or episodic cutaneous involvement, characteristic lesions involving at least 5 percent of the entire body affected, or at least 5 percent of the exposed area, or to have required use of intermittent systemic therapy or medication. With regard to the issue of sustained improvement, the Veteran filed his increased rating claim in March 2018, and the relevant medical evidence during the time period in issue covers well over four years. See 38 C.F.R. § 3.400. During this time, in contrast to the 60 percent rating assigned in April 2012, the criteria for a compensable rating are not shown to have been met. This is evidence of sustained improvement, and the Veteran's March 2018 VA examination report reflects this change. Furthermore, the Veteran's VA examination was thorough, as it included the Veteran's subjective complaints, and current findings (including the medications prescribed to treat the Veteran's skin condition), and the examiner's estimation of the Veteran's level of disability. Brown. Given the foregoing, the evidence is sufficient to show that there was an actual change in the Veteran's bilateral hyperkeratinization and eczema of the feet, that an improvement in his disability had actually occurred, and that such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. Brown. Essentially, to have been eligible for a 60 percent rating at the time the rating was assigned, the Veteran's skin condition would have needed to require the use of constant or near-constant systemic medication, such as immunosuppressive retinoids. Currently, treatment of his skin condition does not involve constant or near-constant systemic medication, such as immunosuppressive retinoids. This fact is evidence of actual improvement. Moreover, the Veteran is not being reduced based on the results of one examination, but rather on the absence of evidence of certain types of treatment as confirmed by VA treatment records and examination reports. Moreover, the Veteran acknowledged at his hearing that he no longer received systemic therapy. The Board therefore finds that the RO's July 2019 reduction of the Veteran's disability rating for his bilateral hyperkeratinization and eczema of the feet from 60 percent to noncompensable, effective October 1, 2019, was proper. Compensable rating. The Board finds that the criteria for a compensable rating have not been met. The evidence is insufficient to show that the Veteran's bilateral hyperkeratinization and eczema of the feet has been productive of either generalized cutaneous involvement or systemic manifestations, resulting in the need for constant or near-constant systemic medication in a 12-month period. DC 7824. The Veteran is shown to have used Purell lotion OTC, and topical medications, Ammonium Lactate and Terbinafine Hydrochloride Cream, on a constant or near-constant basis. These are noted to be for control of dry skin and fungus, and they are not shown to constitute systemic therapy, i.e., treatment pertaining to or affecting the body as a whole. Johnson; Burton. The March 2018 DBQ shows that the examiner indicated that the Veteran does not have any systemic manifestations due to any skin diseases, and the Veteran was not noted to have a history of use of systemic corticosteroids or other immunosuppressive medications, or immunosuppressive retinoids, or other oral medications. Accordingly, the criteria for a compensable rating for service-connected bilateral hyperkeratinization and eczema of the feet have not been met, and the claim must be denied. A compensable evaluation is not warranted under any other potentially applicable code. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Dermatitis and eczema are rated under DC 7806. With regard to the new version of DC 7806, this is rated by application of the General Rating Formula, discussed supra, and the Veteran is not shown to have met the criteria for a compensable rating under those criteria. Under the old version of DC 7806 (as in effective prior to August 13, 2018), a 10 percent disability rating is warranted where at least five percent, but less than twenty percent, of the entire body affected; or at least five percent, but less than twenty 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. These criteria are not shown to have been met. The Veteran's medications have been discussed. He is shown to have required the use of topical medications for control of dry skin and fungus. His medications are not shown to constitute systemic therapy, i.e., treatment pertaining to or affecting the body as a whole. Johnson; Burton. The March 2018 DBQ shows that the examiner indicated that the Veteran does not have any systemic manifestations due to any skin diseases, and the Veteran was not noted to have a history of use of systemic corticosteroids or other immunosuppressive medications, or immunosuppressive retinoids, or other oral medications. The March 2018 DBQ also shows that the Veteran's total body area affected was less than five percent, with no exposed area affected. Accordingly, a compensable rating is now warranted under DC 7806. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). A lay person is competent to testify only as to observable symptoms. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a restoration of his 60 percent rating and/or a compensable rating. The Board has also considered the lay statement from his spouse. Overall, it is argued that the Veteran has symptoms that include bilateral lower extremity pain, numbing, and tingling. However, the Veteran is shown to have a herniated disc at L5-S1, lumbar radiculopathy, pes planus, osteoarthritis of several toes and of the midfoot (bilaterally), hammertoes, callous, and bunion. His diagnoses included pain at the first and fifth MPJ (metatarsophalangeal joints), dorsal aspect of the foot and the bilateral distal phalangeal joints secondary to radiculopathy. In summary, the Veteran and his spouse have asserted that the Veteran has a number of foot symptoms in support the claim. However, service connection is not currently in effect for the underlying causes of those symptoms, nor do those symptoms do not implicate the applicable diagnostic codes. A lay person is not considered competent to testify when the issue was medically complex. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Disability ratings are assigned by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability in issue is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The VA examination also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. Given the medical evidence in this case, the lay testimony has been afforded reduced probative value, and the Board finds that the medical evidence outweighs the Veteran's contentions as to the severity of his disability. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). At his hearing, the Veteran's representative inquired whether the Veteran's keratinization could be rated under Diagnostic Code 5284 for foot injuries. It is true that Diagnostic Code 5284 represents a catchall category for foot problems that can not be properly rated otherwise. However, the Court of Appeals for Veterans Claims (CAVC) has held that when a condition is specifically listed in the Schedule, it may not be rated by analogy (that is by rating under Diagnostic Code 5284. See Copeland v. McDonald, 27 Vet. App. 333 (2015). Here, Diagnostic Code 7824 provides a rating specifically for keratinization, which is the condition the Veteran has. As such, a rating under Diagnostic Code 5284 would not be permissible. The Veteran's representative also inquired as to whether the Veteran's terbinafine could be considered a systemic therapy. However, a review of the VA skin examination showed that the Veteran considered the medication that the Veteran was on, including Terbinafine Hydrochloride Cream 1%, but indicated that such was considered to be a non-corticosteroidal topical cream. As such, it is not viewed as a systemic therapy in the Veteran's case. Accordingly, the use of this medication does not mandate the assignment of a compensable rating. It is noted that the Veteran described a number of problems with his feet and lower extremities during the course of his hearing. To the extent he believes any of the conditions beyond his keratinization are related to service, he should file a claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.