Citation Nr: 21008804 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-41 643 DATE: February 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for eczema, claimed as a rash, is denied. FINDING OF FACT The Veteran’s skin disorder affected at least 5 percent, but less than 20 percent, of the entire body. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for eczema, claimed as rash, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1977 to January 1984. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran recently testified at a Board hearing in May 2019. The transcript of that hearing is associated with the Veteran’s claims file. In July 2019, the case came before the Board. The Board remanded the Veteran’s claim for an additional examination because the medical evidence was too old and the Board was unable to properly evaluate the severity of the Veteran’s claim. 1. Entitlement to a rating in excess of 10 percent for eczema, claimed as a rash The Veteran contends that his disability warrants a higher rating throughout the course of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA received the Veteran’s claim on June 16, 2015. The Veteran’s disability was rated as 10 percent disabling according to Diagnostic Code 7806. The Board has considered other applicable Diagnostic Codes that could be applied to the Veteran’s disability however; given the nature of the Veteran’s disability as described in the medical evidence outlined below, the Board finds that his skin disability is closest to those found when rating dermatitis under Diagnostic Code 7806 and no other Diagnostic Code is applicable. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence) In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the pre-August 2018 rating criteria, Diagnostic Code 7806 provided for a 0 percent rating where there is 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-month period. A 10 percent rating is assigned where there is involvement of 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 rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. Under the post-August 2018 rating criteria, a 0 percent rating is assigned when there is no more than topical therapy required over the past 12-month period and 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 characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month. A 30 percent rating is assigned for 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, (psoralen with long-wave ultraviolet-A light (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 assigned for 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. 38 C.F.R. § 4.118 (August 13, 2018). Prior to the August 2018 amendments, the Federal Circuit distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Nevertheless, a topical corticosteroid could be administered to a large enough scale to affect the body, as a whole, thus meeting the definition of “systemic therapy. Id. With the implementation of the August 2018 amendments, systemic therapy is now defined as 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. 38 C.F.R. § 4.118 (August 13, 2018). As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as eczema. As to the Veteran’s lay statements, the Veteran testified that the skin disorder affects his hands, back, stomach, and thighs. The Board further notes that the Veteran testified that he experiences three or four flareups a year. The Veteran stated that the flareups will last for about a week. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in October 2015. The examiner indicated that the Veteran’s skin disability did not result in scarring of disfigurement of the head, face, or neck. The examiner indicated that the Veteran has been treated with oral or topical medications for 6 weeks or more, but it was not constant. The examiner indicated that the Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. Lastly, the examiner indicated that the Veteran’s skin disability affected 5 percent to less than 20 percent of the Veteran’s total body area and 5 percent to less than 20 percent of the Veteran’s exposed area was affected. In November 2019, the Veteran attended an additional VA examination. The examiner stated that the Veteran reported episodes of pruritic outbreaks. The examiner stated that the Veteran uses hydrocortisone cream 2.5% for condition. The examiner stated that at today’s visit the Veteran showed a video of papular lesions on the posterior trunk associated with an outbreak that occurred in 2016. The examiner indicated that the Veteran used topical corticosteroids or other immunosuppressive medications for less than 6 weeks. Lastly, the examiner indicated that less than 5 percent of the total body area was affected and less than 5 percent of exposed area was affected. The Board has also reviewed the Veteran’s medical treatment records. After a review of the Veteran’s treatment records, the Board finds that the Veteran’s medical records do not show symptoms that his disability is worse than what was reported at his VA examination. As to the Veteran’s use of topical corticosteroids, as stated above, the Federal Circuit found that the topical use of corticosteroids did not constitute systemic therapy under DC 7806 in most cases. Johnson, supra. The Federal Circuit pointed out that although 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Here, there is no evidence that the Veteran was applying the topical corticosteroids to his entire body; instead, the evidence indicates that the Veteran was only applying the topical corticosteroids to the affected areas. Thus, the Board finds that the Veteran’s use of topical corticosteroids is not a systemic therapy under DC 7806. In sum, the Board finds that the Veteran’s skin disability remained consistent and an increased rating is not warranted. After a review of the record, the Board finds that a higher disability rating is unfortunately not warranted for the Veteran’s skin disability under either version of Diagnostic Code 7806. Under the old regulations, the evidence does not show that the Veteran’s disability affected 20 percent or more of the entire body or 20 percent or more of the exposed areas, or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Under the amended regulations, the evidence also does not show characteristic lesions involving 20 percent or more of the entire body or 20 percent or more of the exposed areas affected; or 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 for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The Board has considered the Veteran’s lay statements; however, the Veteran’s lay statements are outweighed by the findings of the medical personnel who have examined the Veteran. The Board acknowledges that the Veteran is able to describe the issues and flareups related to his skin; however, the Veteran is not competent to provide the measurement and analysis of the disability and what specific percentage of his body it covers. Accordingly, the Board has assigned more probative weight to the medical professionals in this case because the medical professionals have considered the Veteran’s lay evidence and the medical professionals have the training and experience necessary to provide a medical opinion regarding the severity of the Veteran’s skin disability. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a rating in excess of 10 percent for eczema. Extra Considerations Lastly, the Board has considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show that his disabilities prevent the Veteran from securing or following a substantially gainful occupation at this time. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.