Citation Nr: 21005598 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-18 780 DATE: February 2, 2021 ORDER An earlier effective date of May 4, 2011, is granted for the increase evaluation of 60 percent for lichen simplex chronicus, right instep. FINDING OF FACT As of May 4, 2011, the competent and probative evidence warrants a finding that the Veteran’s lichen simplex chronicus, right instep required constant or near-constant systemic therapy over the prior 12-month period. CONCLUSION OF LAW As of May 4, 2011, the criteria for a 60 percent rating for lichen simplex chronicus, right instep are met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes (DC) 7813, 7899. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 12, 1976 to February 11, 1981. This matter comes to the Board of Veterans’ Appeals (BOARD) from an April 16, 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Effective date for 60 percent rating for lichen simplex chronicus, right instep In the April 2013 rating decision, the evaluation of the Veteran’s service-connected lichen simplex chronicus of the right instep was increased to 60 percent effective April 5, 2012, the date of receipt of the claim. There is no indication of a claim raised prior to that date; thus, the question is whether the increase in disability occurred during the one-year period prior to the April 2012 claim. The Veteran is rated under Diagnostic Code (DC) 7899-7813. This DC is rated under the general rating formula for the skin. A 60 percent evaluation requires constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, DC 7813. The Veteran contends that she is entitled to an earlier effective date for the increased evaluation awarded in the April 2013 rating decision. After review of the record, an effective date for the assigned 60 percent rating for the Veteran’s service-connected prior to April 5, 2012 is warranted. The earliest date as of which it is factually ascertainable from the record that an increase in disability occurred is May 4, 2011. The weight of the competent and probative evidence warrants a finding that the Veteran’s lichen simplex chronicus, right instep increased in severity on May 4, 2011. In the April 2013 rating decision that granted the 60 percent rating, the RO noted, We have assigned a 60 percent evaluation for your skin condition based on: • Constant systemic therapy required during the past 12-mnth period • Near-constant systemic therapy required during the past 12-month period The evidence at the time of the decision included VA treatment records that reveal in February 2010 the Veteran reported that fungus returned to her feet and requested a podiatry consult. After debridement of toenails in March 2010, the Veteran was referred to dermatology and scheduled for bilateral great toenail removal. During the May 4, 2010 dermatology consultation, the clinician prescribed urea cream and clobetasol cream, for twice daily use. At the Veteran’s October 2010 follow-up appointment, the clinician revised the medications to include clobetasol ointment mixed with urea cream twice daily 3 weeks each month and dovenox cream twice daily during the off week each month. These prescribed medications continued throughout the period on appeal, which also included a brief course of phototherapy. It appears that this is the treatment that resulted in the 60 percent rating assigned. Thus, as of May 4, 2011, the Veteran had been undergoing that treatment for the prior 12-month period. Because the 60 percent rating assigned by the RO was first factually ascertainable within the year prior to the April 2012 claim, the proper effective date is May 4, 2011. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.