Citation Nr: 21076850 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-00 516 DATE: December 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for eczematoid dermatitis is denied. FINDING OF FACT The Veteran's eczematoid dermatitis affects less than five percent of his total body area and his exposed areas. It has not been treated with systemic therapy or immunosuppressive drugs. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for eczematoid dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.951, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to July 1968. The matter currently before the Board was remanded by the Board in November 2020 for evidentiary development. The Veteran appeared at a Board hearing in January 2016; a transcript is of record. During the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. The Board notes that the Veteran has asserted in various statements and testified at his Board hearing that the claimed disorder is related to post-service radiation treatment performed by the VA. This assertion was addressed by the Board in its October 2016 decision denying entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from treatment. As such, this decision will not address that assertion as the issue at hand is whether the Veteran is entitled to an increased rating for the claimed disorder. 1. Entitlement to a rating in excess of 10 percent for eczematoid dermatitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that the current uniform evaluation is appropriate. The Veteran's eczematoid dermatitis is evaluated at 10 percent under Diagnostic Code 7806 (dermatitis or eczema), effective August 1, 1968. The Veteran challenged the evaluation in August 2009. At the time of the Veteran's increased rating claim, under Diagnostic Code 7806 a noncompensable disability rating was warranted when less than 5 percent of the entire body or less than 5 percent of the exposed areas is affected, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating was 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating was warranted when 20 to 40 percent of the entire body is affected; 20 to 40 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118. During the pendency of the Veteran's appeal, 38 C.F.R. § 4.118 was amended, effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised Diagnostic Code 7806, to state that disabilities evaluated under this Diagnostic Code should be evaluated under the General Rating Formula for the Skin. Therefore, the Board is able to 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 subject to rules regarding effective dates. The General Rating Formula for the Skin provides that a noncompensable rating is assigned for 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 is assigned for 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, 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, it could be rated instead as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805). Of note, there is no medical evidence indicating that the Veteran's eczematoid dermatitis has affected the head, face, or neck, or resulted in scars warranting compensation under the applicable diagnostic codes. 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, Diagnostic Code 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 Warren v. McDonald, the United States Court of Appeals for Veterans Claims (Court) held that "systemic therapy" for Diagnostic Code 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 Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court interpreted Johnson to mean that for a treatment to be systemic, it must affect the entire body in its treatment of the condition. 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. The Court held that such determination was a factual question, and that the side effects of a topical therapy were irrelevant to this consideration. In addition, the Court held that the questions of whether a topical treatment was systemic and whether a systemic therapy was "like" a corticosteroid or other immunosuppressive drug did not need to be addressed in a particular order since both elements must be present to justify a higher rating under Diagnostic Code 7806. When a disability rating has been in effect for 20 or more years, that rating is protected. "A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. At a May 2010 VA examination, the Veteran reported that he treated his eczema with silvadene cream. The treatment was noted to not be a corticosteroid or immunosuppressant. A diagnosis of eczema was affirmed. The body area affected was less than 5 percent. None of the face, hands, neck or head were considered affected At a March 2012 VA examination, the Veteran reported that he had treated his eczema constantly with topical corticosteroids and other topical medications. The examiner examined the Veteran and could not find a visible skin condition. The examiner noted that the Veteran was prescribed HC 2.5% cream bid and Sarna for his medical treatment of eczema. In response to the Board's remand, a VA examiner in December 2020 noted that the Veteran has not received chronic systemic therapy in general, chronic immunosuppressive therapy, or chronic systemic steroid therapy at any time during treatment course. The examiner did note that "the Veteran has had one documented oral dose pack of prednisone, per the C&P note 11/19/88 and Derm consult 11/23/88. Dose pack is a short-course, incrementally decreasing dose of prednisone. As used, it is not considered immunosuppressive, but is systemic. The effects are short-lived and would've diminished within 72 hours of completing medication." The examiner also noted the use of clobetasol and topical hydrocortisone, and denied that these do not constitute systemic therapy and are not considered immunosuppressive. In particular, the examiner noted that there is "no evidence of systemic medications, immunosuppressives or steroid use otherwise. The Veteran's diagnosis is eczema and chronic, systemic steroids are used seldomly. Occasional dose packs may have been used and not documented in the current records. Nonetheless this would not constitute a chronic immunosuppressive or steroid use. In summary, the veteran had a single course of short-term oral steroids in 1988. There is no documentation of any other steroid dosing. Such dosing would not constitute chronic immunosuppressive or steroid use. Topical steroids, as used by the Veteran, do not constitute systemic therapy, immunosuppression or systemic steroid use. There have been no systemic steroids documented since 1988 and there would be zero residuals from their use. No immunosuppression would've occurred with the 1988 dosing. This is based on the pharmacology of short course steroids/dose..." The Veteran's representative argues that because the December 2020 VA examiner checked off the box in the Disability Benefits Questionnaire stating that "the claimed condition was less likely than not incurred in or caused by service," the VA examiner may not have reviewed the Veteran's records. The Board disagrees. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the December 2020 VA medical opinion as highly probative medical evidence. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Further review of the medical files also confirms the examiner's observations. Although the examiner checked off the wrong box on the Disability Benefit Questionnaire, the Board still finds the opinion highly probative, as the examiner specifically discussed the Veteran's prescription history and adhered to the remand directives. Specific to the rating criteria in effect prior to August 13, 2018, the medical evidence does not show that eczematoid dermatitis affects more than 5 percent of the total body area or 5 percent of the exposed areas. Moreover, although topical corticosteroids were used for a period of greater than six weeks but less than constantly over 12-month periods, the medical evidence indicates that such treatment was not immunosuppressive or amounted to systemic therapy consistent with the holding of Johnson. Specific to the General Rating Formula, the medical and lay evidence does not show characteristic lesions involving at least 5 percent of the entire body, at least 5 percent of exposed areas, or intermittent systemic therapy or other immunosuppressive drugs. Thus, after a review of the medical and lay evidence, the Board finds that a higher evaluation is not warranted. Simply put, there is no evidence that at least 5 percent of the entire body or at least 5 percent of the exposed areas are affected, or that the Veteran required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period during the period on appeal. Johnson, supra. In short, the competent medical and lay evidence of record reflects that an evaluation in excess of 10 percent is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.