Citation Nr: 21076956 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-08 487 DATE: December 28, 2021 ORDER A rating in excess of 60 percent for eczema from August 10, 2009, to February 9, 2010, is denied. FINDING OF FACT From August 10, 2009, to February 9, 2010, the Veteran is in receipt of the highest schedular disability rating for eczema. CONCLUSION OF LAW From August 10, 2009, to February 9, 2010, the criteria for a rating in excess of 60 percent for eczema have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1980 to July 2002. This case comes before the Board of Veteran's Appeals (Board) on appeal of a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, January 2021, and May 2021 the Board of Veterans' Appeals (Board) remanded the appeal. The Board finds that there has been substantial compliance with its remand directives, and therefore, proceeds with the appeal below. The Board notes that during the pendency of the appeal the Veteran's eczema has been granted an increase to 60 percent. However, as this increase does not reflect a grant in full, the matter is still on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that the Veteran is presumed to be seeking the maximum benefit under law). A rating in excess of 60 percent for eczema from August 10, 2009, to February 9, 2010, is denied. The Veteran's eczema is rated under DC 7806, which pertains to dermatitis or eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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 Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for 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 months. A 10 percent rating is assigned for 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 as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation will be assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is 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 evaluation will be assigned for dermatitis that covers 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Effective August 13, 2018, under DC 7806, 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: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. A 30 percent disability rating is warranted where 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 where 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. In this case, the Veteran is in receipt of the highest rating under both the new and old rating criteria. Thus, a higher rating is not available under DC 7806. The Board finds no other diagnostic codes pertaining to the skin that would afford a higher rating in this case. In considering whether a higher rating is warranted, the Board has considered whether the applicability of any other DCs. Specifically, DC 7806 states that the condition may alternatively be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. However, the evidence does not reflect that the Veteran has scarring or disfigurement from his skin disability. Therefore, no other relevant DC is for application and the Veteran's claim for a disability rating in excess of 60 percent under any other DC is not warranted. (Continued on the next page) Moreover, a review of the record, to include the VA examinations obtained during the appeal period, does not reflect eczema symptoms that are not already contemplated by the current 60 percent rating. Thus, as there are no other symptoms outside of the rating criteria, referral for extraschedular consideration is also not warranted. Accordingly, based upon the above, the Board finds that a rating higher than 60 percent for the Veteran's eczema from August 10, 2009, to February 9, 2010, is denied. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.