Citation Nr: 21074558 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 12-29 857 DATE: December 15, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for dermatitis is denied. Entitlement to a separate 20 percent disability rating for painful scars, scalp and scrotum, from July 29, 2005, to October 4, 2020, is granted. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's dermatitis has affected less than 20 percent of his total skin and does not require systemic therapy. 2. Throughout the entire appeal period, the Veteran's scars of the scalp and scrotum have been painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2017 & Aug. 13, 2018). 2. The criteria for a separate 20 percent disability rating, but no higher, for one painful scalp scar and one painful scrotal scar have been met from July 29, 2005, to October 4, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to September 2002 with additional service periods in the U.S. Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In February 2018, April 2020, and April 2021, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. An October 2020 rating decision, in pertinent part, granted separate ratings for the Veteran's scarring associated with his dermatitis, effective October 5, 2020. As this does not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating remains pending before the Board. See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). "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 a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's dermatitis has been rated as 10 percent disabling, effective July 29, 2005, under Diagnostic Code 7806, which pertains to dermatitis or eczema. Under Diagnostic Code 7806, a 10 percent rating is warranted for dermatitis or eczema covering 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 30 percent rating is warranted for dermatitis or eczema covering 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 warranted for dermatitis or eczema covering 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. 38 C.F.R. § 4.118. The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA's policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the veteran. 38 C.F.R. § 4.118. Since August 13, 2018, a 10 percent rating requires 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 ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating requires at least one of the following: characteristic lesions involving 20 percent 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. Id. A 60 percent rating requires at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 50 percent of exposed areas affected; or constant or near-constant systemic therapy involving, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id. Claims pending prior to the effective date of the new rating, such as in the present case, shall be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. 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 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 DC 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 DC 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. In October 2008, the Veteran testified at a hearing before a different VLJ in support of his initial claim of entitlement to service connection for a skin disorder. He testified that his dermatitis was on his groin and feet which manifested in 2004 and has continued to the present. He also testified that he used anti-fungal creams and powders to help alleviate the itching. See October 2008 Hearing Transcript. A January 2009 VA examination report reflects that the Veteran had areas of mild excoriation and thickening with areas of redness on the scrotum. The examiner found the dermatitis involved 5 percent of the Veteran's total body surface but no amount of exposed body area. The Veteran reported using Desonide cream to manage his dermatitis. See January 2009 VA Examination Note. At a November 2011 VA examination, the Veteran reported his dermatitis had manifested in increased itching which caused bleeding. His dermatitis was treated with oral medication under 6 weeks to treat an abcess and topical medications of clotrimazole cream and micatin powder on a constant/near-constant basis. The examiner noted there was no scarring caused by the dermatitis. The Veteran's dermatitis was recorded as involving at least 5 percent, but less than 20 percent, of his total body area, and none of his exposed body area. See November 2011 Skin Diseases Disability Benefits Questionnaire (DBQ). VA treatment records reflect the Veteran's dermatitis has manifested in extensive itching, with excoriations of the feet and scrotum. His dermatitis has been treated with doxycycline, triamcinolone with clotrimazole, hydrophore moisturizer, and atarax. See February 2012 Dermatology Note; June 2012 Dermatology Note; October 2013 Dermatology Note (noting the entire scrotal surface was lichenified); February 2014 Dermatology Note. At a November 2014 VA examination, the Veteran reported his itching has worsened with increased eruptions and daily bleeding. The Veteran's dermatitis was treated with hydroxyzine, an oral medication; triamcinolone, a topical corticosteroid; and coal tar, a topical medication. All medications were administered on a constant/near-constant basis for the past 12 months. The examiner noted that less than 5 percent of the Veteran's total body area was affected and none of his exposed body area was affected. The Veteran stated he was unable to continue as a substitute teacher due to his dermatitis. Multiple scars were noted, none of which were painful or unstable. See November 2014 Skin Conditions DBQ; November 2014 Scars DBQ. A February 2015 addendum clarified that none of the medications prescribed to treat the Veteran's dermatitis would be considered immunosuppressive. See February 2015 VA Examination Note. A March 2017 VA examination report reflects the Veteran's dermatitis manifested in pruritic skin and was treated with antihistamines, topical corticosteroids, and other topical medications on a constant/near-constant basis in the past 12 months. The dermatitis affected at least 5 percent, but less than 20 percent, of the Veteran's total body area, and affected less than 5 percent of his exposed body area of his scalp and right upper extremity. No scarring was noted upon examination. See March 2017 Skin Diseases DBQ. At the October 2017 hearing before the Board, the Veteran testified that his skin disease requires him to use an oral medication, cream, and powder daily to help alleviate the symptoms. He further testified that his dermatitis covered 35 to 40 percent of his body area. The Veteran noted that he had scarring on his hands which were painful and itchy. See October 2017 Hearing Transcript. VA treatment records reflect the Veteran had excoriations of the scalp, upper extremities, and lower extremities. He stated his excoriations were improved with coal tar. He was prescribed an antibacterial medication for his excoriations. See March 2018 Dermatology Note; January 2019 Dermatology Note; August 2019 Dermatology Note (continuing topical therapies); November 2019 Dermatology Note; January 2020 Dermatology Note. An October 2019 VA addendum opinion clarified that the Veteran's prescription of hydroxyzine is an antihistamine. The examiner further stated that hydroxyzine is not considered a corticosteroid and its antihistamine mechanism is not similar to corticosteroids. Hydroxyzine is also not considered an immunosuppressive drug and its antihistamine mechanism is not similar to immunosuppressive drugs. Finally, hydroxyzine is not pharmacologically related to, or like, or similar to corticosteroids or immunosuppressive drugs. See October 2019 Addendum DBQ. VA examination reports from October 2020 noted the Veteran had scarring related to his dermatitis on his scalp and scrotum. His upper and lower extremities were unaffected. The Veteran's dermatitis was noted as affecting at least 5 percent, but less than 20 percent, of his total body area, and under 5 percent of his exposed body area. The examiner noted the Veteran had been treated with triamcinolone acetomide cream, a corticosteroid or other immunosuppressive medication; the oral antihistamine hydroxyzine; and mupirocin ointment, miconazole nitrate powder, and coal tar shampoo. These treatments had been administered on a constant/near-constant basis for the prior 12 months. A November 2020 addendum stated that none of the Veteran's medications were considered systemic steroids. The examiner explained that at the doses prescribed, the Veteran would not be expected to experience any immunosuppression. See November 2020 Addendum DBQ. In December 2020, the Veteran reported excoriations on his scalp, scrotum, and lower extremities. He also reported coal tar being helpful to alleviate his symptoms. He denied pain but endorsed significant itching. See December 2020 Telephone Encounter Note. In June 2021, an addendum was obtained which addressed whether any of the Veteran's prescribed medications would be considered systemic therapy and whether any topical medications were administered on such a scale as to be considered systemic therapy. The examiner opined that none of the Veteran's medications constitute systemic therapy. In addressing miconazole, coal tar, and mupirocin, the examiner found that these medications would have no systemic impact, regardless of the surface area involved. As to the prescription for triamcinolone, the examiner explained this is a topical steroid, but is not considered systemic therapy, regardless of the surface area involved. The examiner noted that topical steroids could be absorbed in small amounts and it is therefore possible they could have systemic effects, but this would require an overuse or overdose of the prescription. Given the medications prescribed and surface area involved, the examiner found systemic effects are unlikely to occur. See June 2021 Addendum DBQ. Upon review of the record, the Board finds that a rating in excess of 10 percent for dermatitis is not warranted. In order to warrant a higher rating under Diagnostic Code 7806 prior to August 2018, the Veteran's skin disorder would have to be manifested by 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. Here, however, VA examination reports consistently show that the Veteran's skin disorder covers less than 20 percent of the total body area and under 5 percent of the exposed area. Additionally, VA examiners have indicated that the Veteran's medications used do not amount to systemic treatment Under the revised Schedule for Rating Skin Disabilities, the Board similarly finds that a rating in excess of 10 percent for the skin disorder is not warranted from August 2018, forward. In order to warrant a higher rating, the Veteran's skin disorder would have to be manifested by characteristic lesions involving at least 20 percent but less than 40 percent of the entire body or exposed area 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. Here, as stated above, the VA examinations show that the Veteran's dermatitis covers less than 20 percent of total body area and less than 5 percent of the exposed area. Additionally, the VA examiners indicated that the Veteran has not required systemic therapy. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's skin disorder under the 2018 revised Schedule for Rating Skin Disabilities. The Board has further considered the other Diagnostic Codes pertaining to the skin. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Here, the Veteran's skin disability is rated based on the method of treatment and the total body area affected. As stated above, the Veteran was awarded separate ratings under Diagnostic Codes 7800, 7802 and 7804, which pertain to scars. The effective date of these ratings is October 5, 2020, the date of the Veteran's most recent VA examination. Specifically, he was awarded a 20 percent rating for painful scars on the groin and scalp under DC 7804; a 10 percent rating for a scalp scar based upon disfigurement under DC 7800; and a noncompensable rating for scars on the groin and scalp under DC 7802. Under Diagnostic Code 7800, provides a 10 percent evaluation is warranted for scars of the head, face, or neck with one characteristic of disfigurement. A 30 percent evaluation is warranted for two or three "characteristics of disfigurement;" or with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips). A 50 percent evaluation is warranted for four or five "characteristics of disfigurement;" or with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips). A 70 percent evaluation is warranted for six or more "characteristics of disfigurement;" or with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips). 38 C.F.R. § 4.118. "Characteristics of disfigurement" includes a scar five or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of a scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. at Diagnostic Code 7800, Note (1). Diagnostic Code 7804 sets forth the disability ratings of: 30 percent for five or more scars that are unstable or painful; 20 percent for three to four scars that are unstable or painful; or 10 percent for one or two scars that are unstable or painful. An "unstable" scar is a scar "where, for any reason, there is frequent loss of covering of skin over the scar." Id. at Diagnostic Code 7804, Note (1). (Continued on the next page) Throughout the appeal period, the Veteran's dermatitis has been characterized by excoriations (skin lesions from recurrent scratching) of the scalp and scrotum, which have manifested in extensive itching. Furthermore, the Veteran testified that his dermatitis caused severe itching and pain. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the separate 20 percent rating for painful scarring of the scalp and scrotum should be effective July 29, 2005, the date of his initial claim of entitlement to service connection. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. There is no evidence that the Veteran's scalp scar manifested in a characteristic of disfigurement prior to October 5, 2020, or more than one characteristic of disfigurement from October 5, 2020, forward. Thus, a separate and/or higher rating under DC 7800 is not warranted. Further, there is no evidence showing that the Veteran's scars have involved an area of 144 square inches or greater so as to warrant a 10 percent rating under DC 7802 at any time. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.