Citation Nr: 21010715 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-16 379 DATE: February 25, 2021 ORDER An initial 10 percent rating for a skin condition, is granted from August 1, 2007. FINDING OF FACT The dermatological condition has involved approximately between 5 percent and 20 percent of the entire body or the exposed areas, even while somewhat attenuated more recently with use of prescribed topical medication. CONCLUSION OF LAW Resolving reasonable doubt favorably, the criteria are met for a 10 percent initial rating for a skin condition, with varied diagnoses that include chloracne, effective since August 1, 2007. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (as of 2020 regulations that currently apply, and prior versions). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Army from June 1967 to June 1969. The procedural history for the case follows a March 2015 Board decision, in part granting a claim of service connection for a skin disorder, variously diagnosed. The April 2015 VA Regional Office (RO) rating decision implemented that Board decision, and indicated the grant of service connection for the claimed skin condition and with a noncompensable (0 percent) evaluation, effective August 1, 2007. Following this the Veteran appealed the initial rating. The October 2018 Board decision/remand from a procedural standpoint combined the issue of increased rating with the second issue of requesting an earlier effective date of service connection, since the two questions were considered inextricably intertwined. See generally, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The earlier effective date claim was based on an alleged Clear and Unmistakable Error (CUE) within an August 1997 RO rating decision. The Board remanded the claim to adjudicate in the first instance the earlier effective date claim, the next stage being the increased rating claim. In an August 2020 decision, the Board determined a claim for earlier effective date was procedurally dismissed because it found that a November 2012 Board decision was the last final denial of record for the original claim, and a motion for CUE in that decision had not been filed. The November 2012 Board decision was considered to have subsumed the contested June 1997 RO rating decision (originally listed as a CUE claim with an August 1997 RO rating decision, no different substantively) and the Board decision would have been the basis for CUE inquiry. Turning to an increased rating claim it was remanded for more recent VA examination including if possible during a flare-up period. That action was completed. The case has since returned to be further considered. The claim for compensable rating for a skin condition. Applicable Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2007. Fenderson v. West, 12 Vet. App. 119 (1999). The service-connected condition has been evaluated so far at a noncompensable level (0 percent) based on 38 C.F.R. § 4.118, Diagnostic Code 7806. VA amended the criteria for rating the skin, effective August 13, 2018. Prior to August 13, 2018, under Diagnostic Code 7806 pertaining to dermatitis or eczema, where less than 5 percent of the entire body or exposed body areas are affected, and no more than topical therapy is required during the past 12-month period, a 0 percent (i.e., noncompensable) rating is assigned. In order for a 10 percent rating to be assigned, the evidence must show that at least 5 percent, but less than 20 percent, of the entire body or the exposed areas are affected, or it must show that 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. Where 20 to 40 percent of the entire body or exposed areas are affected, or 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 30 percent rating is assigned. Where more than 40 percent of the entire body or 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, a 60 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. A note to the rating criteria further states that otherwise, rate the condition as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id. There is additional relevant caselaw precedent as affecting the implementation of the VA rating criteria in effect prior to August 13, 2018. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 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. Effective August 13, 2018, 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.” 38 C.F.R. § 4.118(a) (2018). DC 7806 continues to apply to dermatitis or eczema, but is rated under the General Rating Formula for the Skin, which applies to Diagnostic Code 7806, 7809, 7813-7816, 7820-7822, and 7824. Under the general rating formula, a noncompensable rating is warranted when there is 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 warranted where at least one of the following is present: 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 warranted where at least one of the following is present: 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 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Relevant Evidence and Legal Analysis of the Claim on Appeal In view of application of Diagnostic Code 7806, the grounds for a partial grant of the claim on appeal are considered met, for an increased rating of 10 percent for the service-connected dermatological disorder. As to the evidence and findings, the primary source consists of VA examination reports. There are also several lay witness statements from the Veteran and others who observed symptomatology as to the condition. The latter includes an August 2007 lay statement from a member of the Veteran’s family stating, prior to going into the military, the Veteran was in excellent health and he had very smooth, healthy skin and never complained about any skin problems. After returning from Vietnam, he reported skin problems and appeared to have dermatological issues affecting the face, legs, back, stomach, neck and armpits. He was covered with large “blackheads” and red pus-filled bumps that would burst and ooze. He started self-treatment but over the years the condition had gotten increasingly worse. He had described that in 1968 while over in Vietnam, he had a red, painful bump a boil removed from under his armpit. He said that one of his doctors told him that his skin condition was a result of his exposure to Agent Orange while in Vietnam. The February 2014 statement from this same witness observer indicated similarly as above. She described acne on the Veteran’s face, feet, and legs. There was a statement from the Veteran’s spouse received in October 2012. It stated that soon after separation from service, the Veteran’s condition had apparently resulted in that there were facial marks from acne, one or more large fluid filled blackheads and oily not dry skin condition. According to the statement the Veteran continued to have many blackheads and acne on his back and face. He had blackheads and other fluid filled cysts on other areas. There were stated to have been scars on the leg region where sores or a rash would still form. In recent years VA had given the Veteran several medications that he had used to help with blackheads and acne and this included a strong skin cream. Also used as topical medications were Lamisil for the feet, benzoyl peroxide topical wash, Desquam-X wash, triamcinolone acetonide cream, clindamycin phosphate lotion, tretinoin cream and clotrimazole solutions. There was dry skin on the feet, some reported areas of the condition causing a discoloration, and continuing oily skin and reported areas of acne. The February 2014 statement provided by the Veteran states that before leaving Vietnam he had begun to experience acne with cysts, large blackheads on his face, neck, behind the ears, back, on the chest and under the arms. There was not a problem before going to Vietnam. He stated obtaining medication while in Vietnam. The acne continued after separation from service. It was stated that the acne was getting worse on the face and body and so it was treated with over-the-counter medication. He continued to treat the acne in this manner since service, stating it was not then diagnosed by treatment providers as “chloracne” and was considered to be acne. The Veteran was still taking medication on the recommendation of VA medical providers at that time. On VA examination December 2012, the diagnoses were dermatitis or eczema; acne; infectious skin conditions (infected sweat glad left axilla, resolved); pseudofolliculitis barbae (PFB); tinea ungvatum; tinea pedis; and xerosis (dry skin). The Veteran described having had a rash in the knee are and bumps on the stomach, anterior chest area, on the back and on the buttock area. He was using no specific medications for his skin condition. The condition did not cause scarring or disfigurement of the head, face or neck. There were not any benign or malignant skin neoplasms. There were not systemic manifestations, such as fever, weight loss or hypoproteinemia. It was stated there had not been treatment with oral or topical medications in the prior 12 months for any skin condition. There were no other treatments indicated over the prior 12 months. There were not indicated any visible skin conditions including dermatitis, eczema, bullous disorder, psoriasis, or infections of the skin. The condition of acne or chloracne was considered to affect body areas other than face and neck. There were no observed skin lesions that were present and suggestive of chloracne according to the examination. On VA examination again in March 2017, the diagnosis at outset was acne/chloracne. The Veteran indicated that post-service he had started to have breakouts with pus filled lesions on the back, face and chin. The condition had gotten worse. Chloracne had been identified and notated by VA medical providers and a private dermatologist. The condition did not cause scarring or disfigurement of the head, face or neck. There were not any benign or malignant skin neoplasms. There were not any systemic manifestations due to any skin disease. The Veteran had obtained treatment within the previous 12 months by topical medications for the condition, consisting of Terbinafine, Benzoyl Peroxide, Tretinoin, and Clotrimazole. There had not been any debilitating episodes in the previous 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. There were not any visible skin conditions, including dermatitis, eczema, bullous disorder, and psoriasis. There was not acne or chloracne present. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the diagnosis. Further indicated as the summary, the Veteran had the condition of acne/chloracne. There was no visible rash or lesions. A color photograph was enclosed. There was no change in the established diagnosis. At this time the condition was deemed quiescent. On examination again in December 2020, the diagnosis at outset was chloracne. The course of the condition since onset was listed as having “stayed the same.” There was not indicated as present any since resolved skin conditions. The Veteran indicated that he used corticosteroids or other immuno-suppressive medications, consisting of Triamcinolone cream, topically, on a constant or near-constant basis. On physical examination there was chloracne present. There was not any visible dermatological condition on the skin surface, including dermatitis, eczema, dermatophytosis, bullous disorder, or psoriasis. There were not present any visible characteristic lesions of a skin condition at the time of examination. There was present at the back region from earlier issues dark papules without exudate or signs of inflammation, also due to chloracne, superficial acne present (comedones, papules, pustules). The Veteran’s skin conditions did not cause scarring or any form of disfigurement of the head, face or neck. The Veteran’s skin conditions did not impact his ability to work. There was no need for the Veteran to follow up with any serious medical problems as due to the findings stated in the examination report. It was indicated there was no change in the service-connected diagnosis and no additional diagnoses had been rendered. The examiner concluded that his chloracne covered 5 to less than 20 percent of his total body area and none of his exposed body area. From the evidence that is available including VA examination medical history and prior lay witness statements that were provided, a 10 percent rating is warranted for the service-connected skin condition. Even if fortunately better controlled by medication now, there are likely signs of a condition involving between 5 percent and 20 percent of the entire body or the exposed areas, for applying a 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7806. See also Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that VA cannot deny a higher rating based solely on the relief provided by medication when the ameliorative effects of medication are not contemplated by the rating schedule). This is particularly when applying VA’s benefit-of-the-doubt doctrine that where there is a factual question material to the outcome of a claim, any reasonable doubt raised on the particular issue is resolved favorably. See 38 C.F.R. § 4.3. Further, the rating process is supposed to account for long-term medical history, and although currently chloracne is listed as in a “quiescent” state since only less than a decade ago it was described in a more active phase and again might be so if not as well-controlled, and/or may have some residual acne areas, the rating history as a whole is consistent with the compensable rating. See 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.”). See also Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). These findings provide a basis for the grant of an initial 10 percent rating, beginning August 1, 2007. A further increase is not warranted, absent greater symptomatology. Minimum surface requirements for a rating under the diagnostic Codes applicable to scars are not met. Additionally, the probative medical evidence of record does not show the condition causes functional limitations, nor has the Veteran so asserted. Also the fact that a topical corticosteroid was utilized for treatment purposes has been considered, though under the applicable caselaw this would not qualify as being systemic therapy prior to August 13, 2018. The Veteran’s Triamcinolone cream is a corticosteroid. The Veteran’s Terbinafine, Benzoyl Peroxide, Tretinoin, and Clotrimazole are not corticosteroids. The evidence does not show that any of these medications operated by affecting his body as a whole. Records do not show that he experienced side effects or other effects of the topical creams that impacted his body as a whole. He has not provided lay evidence indicating that his cream impacted any part of his body other than those he applied it to. Beginning August 13, 2018, a topical cream is not considered systemic therapy for the purposes of rating skin conditions. 38 C.F.R. § 4.118(a) (2020). For these reasons, and applying VA’s benefit-of-the-doubt doctrine to the extent indicated, an initial 10 percent rating for a service-connected dermatological condition is granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.