Citation Nr: 21074832 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 06-33 547 DATE: December 16, 2021 ORDER As of February 25, 2013, a rating of 30 percent, but no higher, for tinea pedis, tinea cruris, dermographism, and pseudofolliculitis barbae (hereinafter, skin disability) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran's skin disability was manifested by, at most, characteristic lesions involving 20 to 40 percent of the entire body and required systemic therapy in the form of corticosteroids for at least 6 weeks of the past 12-months, but not constantly, but did not result in disfigurement other than hyperpigmentation of the groin area, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional disabling effects. CONCLUSION OF LAW As of February 25, 2013, the criteria for a rating of 30 percent, but no higher, for a skin disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to February 1979 and from October 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2019 and July 2020, the Board remanded the claim on appeal, as well as a service connection claim for posttraumatic stress disorder (PTSD), for additional development. While on remand, a July 2021 rating decision granted service connection for PTSD. As such is a full grant of the benefit sought on appeal in regard to such issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining claim now returns for further appellate review. Further, as the Veteran submitted a September 2021 application for a TDIU in which he alleged that his skin disability, in part, rendered him unemployable, the Board has assumed jurisdiction over such claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, following certification of the appeal to the Board, the Veteran's representative filed a motion to withdraw as his legal representative pursuant to 38 C.F.R. § 20.608 in August 2019. In July 2021, the Board granted such motion, and the Veteran was notified accordingly. To date, he has not appointed another representative. Therefore, the Veteran is considered unrepresented in the current appeal. 1. Entitlement to a rating in excess of 10 percent for a skin disability. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 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. The period on appeal begins February 25, 2014, the date VA received the Veteran's increased rating claim, plus the one-year look-back period. See 38 C.F.R. § 3.157; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran's skin disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, DC 7806. However, during the pendency of the appeal, VA amended the criteria for rating the skin, to include scars. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. Id. 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 August 13, 2018, the effective date of the new criteria, and, therefore, the Board will consider both the old and new criteria. However, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-03; VAOPGCPREC 3-00; 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. Under DC 7806, as in effect prior to August 13, 2018, a noncompensable rating is assigned if dermatitis or eczema affects less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted if dermatitis or eczema affects at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of the exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if the dermatitis or eczema affects 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 was 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 if the dermatitis or eczema affects 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 was required during the past 12-month period. 38 C.F.R. § 4.118. As of August 13, 2018, DC 7806 provides that dermatitis or eczema is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where such disability requires no more than topical therapy required over the past 12-month period and either 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 warranted 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 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, in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that use of a topical steroid constituted "systemic therapy". 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" 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. Both versions of Diagnostic Code 7806 also provide that dermatitis or eczema may be rated under Diagnostic Codes 7800-7805, depending on the predominant disability. Such diagnostic codes provide compensable ratings for disfigurement of the head, face, or neck, scars that are at least six square inches, or scars that are unstable or painful. Additionally, Diagnostic Code 7805 provides that any disabling effect not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. The Veteran underwent VA examination in February 2013. At such time, he was diagnosed with tinea pedis and tinea corporis. Although he denied flare-ups, stating his condition is always present, he reported the rash on his groin area is aggravated by warm weather and perspiration. The examiner noted the Veteran treated his skin disability with continuous use of topical corticosteroids (Triamicilone 2.5%), as well as systemic corticosteroids in the form of injections for less than 6 weeks of the past 12-months. He was also noted to have no episodes, debilitating or otherwise, of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. His skin disability affected less than 5 percent of the total and exposed body area. On VA examination in May 2014, his skin disability was described as an intermittent rash on his feet (tinea pedis) and groin area (tinea cruris), small bumps on his head and face (pseudofolliculitis barbae), and itching, burning skin that can develop whelps on his arms, back, and chest (dermographism). In the past 12 months, he had been treated for 6 weeks or more, but not constant, with hydrophilic topical cream and triamcinolone acetonide, a corticosteroid cream. Upon examination, it was found that the Veteran's skin disability affected less than 5 percent of his exposed areas affected and total body area. In this regard, it was observed that he had hyperpigmentation of the groin area, and a few papules visible on his cheeks and anterior neck but was otherwise asymptomatic. The Veteran was afforded another VA skin examination in March 2017. At such time, he was diagnosed with dermatitis, urticaria, and pseudofolliculitis, but the examiner noted tinea was not present anywhere. The examiner noted the Veteran treated his skin disability with continuous use of topical corticosteroids and antihistamines. The Veteran again reported that his condition was "much, much worse" in the summer with the hot weather. He was also noted to have no debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis; however, he had non-debilitating episodes of urticaria, beginning with the warm weather, which spread like poison ivy over his inner arms and thighs, head, neck, and back. Upon examination, it was found that the Veteran's skin disability affected less than 5 percent of his exposed body area and 5 to 20 percent of his total body area. As the Veteran described having skin problems that were more severe in the summer and, in July 2014 he submitted copies of photographs documenting his skin condition, the April 2019 Board remand instructions directed that an attempt be made to schedule the Veteran for an examination during a flare-up of his skin disability. The Veteran underwent another VA examination for his skin disability in October 2019, at which time, he was noted to have pseudofolliculitis barbae and tinea versicolor, a combined diagnosis of tinea pedis, tinea cruris, and dermographism. He still had use of a topical corticosteroid, as well as selenium sulfide 2.5% and hydrophilic topical cream, for 6 weeks or more, but not constant, in the past 12 months, and his disability affected 5 percent to 20 percent of his total and exposed skin area. However, as there was no indication an attempt was made to schedule the Veteran's examination during a flare-up, and the October 2019 examiner did not describe flare-ups of the Veteran's skin disability, in July 2020, the Board remanded the case for a new VA examination. In April 2021, the Veteran was afforded another VA examination. At such time, he was diagnosed with tinea pedis, tinea cruris, pseudofolliculitis, and dermographism. Although the examiner checked the box indicating the Veteran had not been treated with medication in the past 12 months for a skin condition, the examiner noted the Veteran reported using creams, ointment, and pills for itching. Upon examination, it was found that the Veteran's skin disability affected less than 5 percent of his exposed and total body area, and the examiner noted he had small papules with pus to the chin area, maceration between toes, malodorous, scaly, dry heels, and mild, itchy rash to the groin. The Veteran again reported that working in the heat aggravated and caused rash break-outs that resulted in itching. However, as the examiner did not address a July 2014 photograph or the estimated measurements during skin flare-ups, an addendum opinion was obtained in September 2021. Based on a review of the photos provided, the VA examiner estimated that the Veteran's skin disability affected between five and 20 percent of his exposed and total back area and hands dorsum, respectively, less than five percent of the exposed ear area and total ear area, and between five and 20 percent of the exposed anterior face area and total anterior face area. In addition, the April 2021 examiner estimated flare-ups would affect five centimeters by .5 centimeters of the right ear, nine percent of the anterior back, nine percent of the posterior back (for a total area of 18 percent), nine percent of the anterior face, 1.5 percent of his hands, bilaterally (equaling three percent), to equal 12 percent of his exposed skin area and 30 percent of his total skin area. Based on the foregoing, the Board finds that during flare-ups, the Veteran's skin disability has affected 30 percent of his total body area, as characteristic lesions involved 20 to 40 percent of the entire body throughout the appeal period. Further, the May 2014 and March 2017 examiners found the Veteran used intermittent systemic therapy in the form of corticosteroids at least 6 weeks out of the last 12 months, with the February 2013 and October 2019 examiners finding constant or near constant use. While the April/September 2021 examiner noted the Veteran had not been treated with medication in the past 12 months for a skin condition, this is an outlier, and may be in error as the Veteran reported that he used creams, ointments, and pills at this examination. Thus, a 30 percent rating under DC 7806 is warranted. In this regard, the Board finds probative the consistent reports of the February 2013, May 2014, March 2017, and October 2019 VA examiners of the Veteran's use of systemic therapy in the form of corticosteroids for at least 6 weeks over the past 12-months. Further, the Board finds the September 2021 examiner's opinion probative specific to flare-ups, as she provided specific measurements during a flare-up based on the Veteran's descriptions and submitted photographs. Therefore, the Veteran warrants a rating of 30 percent under both the old and new versions of DC 7806. The Board has contemplated whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected skin disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, the Veteran has not raised any other issues nor have any other issues been reasonably raised by the record with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which has resulted in the award of a 30 percent rating for the Veteran's skin disability for the entire appeal period. However, as the preponderance of the evidence is against a rating in excess of 30 percent for such disability, that doctrine is not applicable in such regard, and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a TDIU. The Veteran asserts his service-connected disabilities have prevented him from securing and following a substantially gainful occupation. Specifically, in his September 28, 2021, Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), he stated he has been unable to work due to his service-connected PTSD and pseudofolliculitis barbae since August 1, 2017. In this regard, he is currently service-connected for major depressive disorder (MDD), evaluated as 30 percent disabling from January 27, 2017, to April 17, 2021, and 70 percent disabling thereafter, and his skin disability, which was previously evaluated as 10 percent disabling as of May 8, 1991. Based on those assigned ratings, the Veteran did not meet the schedular criteria for a TDIU prior to April 17, 2021. However, the award of an increased rating herein for the Veteran's skin disability may impact his claim for a TDIU as such will affect his overall combined rating during the appeal period. As such, the claim for a TDIU is inextricably intertwined with the implementation of such award and adjudication of the former must be deferred. Furthermore, as the AOJ has not had the opportunity to conduct any necessary development in connection with the Veteran's claim, a remand is warranted to properly adjudicate the claim. The matter is REMANDED for the following action: 1. Implement the Board's award of a 30 percent rating as of February 25, 2013, for the Veteran's skin disability. 2. Thereafter, conduct any necessary development in connection with the Veteran's claim for a TDIU and adjudicate such claim. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.