Citation Nr: 21011183 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-04 417 DATE: March 1, 2021 ORDER Entitlement to an initial compensable disability rating for skin rash (diagnosed as dermatitis) is denied. FINDINGS OF FACT 1. The Veteran did not use corticosteroids, immunosuppressive drugs, or similar substances for treatment of the service-connected skin rash. 2. The Veteran’s use of topical treatment in treating his skin rash did not affect his body as a whole such that it should be considered “systemic therapy.” 3. The Veteran’s skin rash did not require more than topical therapy over the past 12-month period, nor did it result in characteristic lesions affecting less than 5 percent of the entire body and/or exposed areas. 4. The Veteran’s skin rash did not manifest by characteristic lesions affecting at least 5 percent, but less than 20 percent, of the entire body; or show characteristic lesions affecting at least 5 percent, but less than 20 percent, of exposed areas; or require 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. CONCLUSION OF LAW The criteria for an initial compensable disability rating for skin rash (diagnosed as dermatitis) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (as in effect both prior to and since August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Army from February 1978 until June 1978, and from November 1990 until August 1991. He otherwise served in the Puerto Rico Army National Guard from September 1977 until his honorable retirement in July 2002. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a June 2013 rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for skin rash and assigned an initial noncompensable disability rating effective July 16, 2012. In August 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the Regional Office (RO) in San Juan, Puerto Rico. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. In November 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination as to the Veteran’s skin rash, as he testified his skin rash had worsened since his most recent 2013 VA examination. The RO obtained a VA examination in November 2020 consistent with the Board’s remand directive. The case now returns to the Board. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. 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 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In cases where staged ratings are appropriate, it is necessary to consider all “the evidence of record from the time of the veteran’s application.” Id. at 127. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. An initial rating is one assigned at the time service-connection is granted. Generally, the effective date of an initial rating is the date of receipt of the claim/request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). Separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Fenderson, 12 Vet. App. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Rating Criteria – Dermatitis The Veteran’s skin rash was diagnosed as dermatitis by the July 2013 VA examiner and confirmed by the November 2020 VA examiner. Dermatitis is currently rated under 38 C.F.R. § 4.118, DC 7806 (2021), “Dermatitis or eczema.” Diagnostic Code 7806 instructs the adjudicator to “[e]valuate under the General Rating Formula for the Skin.” Prior to August 13, 2018, DC 7806 had its own assigned rating criteria, which is very similar to the current rating criteria, but differed in important respects. The Veteran filed his claim for service connection for his skin rash in November 2012. His appeal of the RO’s assignment of the initial noncompensable disability rating is associated with his November 2012 claim. Because his appeal has been pending since 2012, prior to the August 13, 2018, amendments to DC 7806, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.118, DC 7806, and whatever criteria is more favorable to the veteran will be applied. 83 Fed. Reg. 32,592 (July 13, 2018); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal). Prior to August 13, 2018 Prior to August 13, 2018, 38 C.F.R. § 4.118, DC 7806 provided as follows: Rating (%) 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 60 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 30 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 10 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 0 Prior to August 13, 2018, VA regulations did not define “topical therapy” or “systemic therapy” treatment. In Johnson v. Shulkin, the Federal Circuit Court, analyzing 38 C.F.R. § 4.118, DC 7806 (2017), held “the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.” 862 F.3d 1351, 1355 (Fed. Cir. 2017). The court went on to opine that a topical therapy could be systemic if it was applied on a large enough scale. Id. Yet, the Federal Circuit did not state whether the scale of administration is the only way a topical therapy could be systemic or if that was merely an example. In Burton v. Wilkie, the Court of Appeals for Veterans Claims provided clarification about what “factual circumstances” may be relevant. 30 Vet. App. 286 (2018). The Burton court held, the Board must determine whether a topical treatment operates by affecting the body as a whole in treating the veteran’s skin condition. Stated a different way, the Board must decide how the topical treatment works — not by its contact with the affected location of the condition on the body, but instead in some other way that affects the body more broadly. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. Thus, in affecting the body as a whole, it essentially would not matter whether the topical treatment was applied where the condition was located or some other part of the body, as the body in its entirety would be involved in the treatment. Id. at 292. The court further stated that “[h]ow a topical treatment works is a factual question that may, but not necessarily, require a medical opinion for its resolution. The Board may make such a factual finding based on other evidence, such as medical dictionaries.” Id. (citations omitted). Following the Johnson decision, VA amended its regulations, effective August 13, 2018. See generally Schedule for Disability Ratings: Skin, 83 Fed. Reg. 32,592 (July 13, 2018), as corrected at 83 Fed. Reg. 38,663 (Aug. 7, 2018). As of August 13, 2018 As of August 13, 2018, 38 C.F.R. § 4.118, DC 7806 instructs the adjudicator to refer to the General Rating Formula for the Skin, which does not have an associated DC under 38 C.F.R. § 4.118 (2021). The General Rating Formula for the Skin provides as follows: Rating (%) General Rating Formula for the Skin for DCs 7806, 7809, 7813–7816, 7820–7822, and 7824: At least one of the following 60 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 At least one of the following 30 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 At least one of the following 10 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 No more than topical therapy required over the past 12-month period and at least one of the following 0 Characteristic lesions involving less than 5 percent of the entire body affected; or Characteristic lesions involving less than 5 percent of exposed areas affected VA now defines “topical therapy” as “treatment that is administered through the skin.” 38 C.F.R. § 4.118(a) (2021) (emphasis added). VA now defines “systemic therapy” as “treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin.” Id. (emphasis added). Analysis The Veteran was afforded two in-person VA medical examinations in connection with his dermatitis, one in July 2013 and one in November 2020. The July 2013 VA examiner documented that the Veteran had not been treated with oral or topical medication in the past twelve months for any skin condition. The examiner documented the Veteran had not received treatments or procedures in the past twelve months for exfoliative dermatitis or papulosquamous disorders. The examiner found the Veteran had visible characteristic lesions due to his dermatitis covering less than five percent of his total body area and less than five percent of his exposed body area. The examiner described the Veteran’s dermatitis as an “area of small papules with peeling in dorsum on left hand.” The November 2020 VA examiner documented that the Veteran reported a history of itching and rash on both arms since 2013, and that he started using Aveeno moisturizer cream. A date was not recorded for when the Veteran began using the cream. The examiner documented that the Veteran had not been treated with medication in the past twelve months for any skin condition, nor had he received any treatments or procedures in the past twelve months for any skin condition. The examiner found the Veteran had visible characteristic lesions due to his dermatitis covering less than five percent of his total body area and less than five percent of his exposed body area. The examiner described the dermatitis as “bilateral arm scratching rash.” The Board has reviewed the Veteran’s VA and private medical associated with his claims file and is unable to locate any relevant evidence of treatment or procedures relating to his dermatitis. Absent evidence to the contrary, the Board finds the July 2013 and November 2020 VA examiners were competent to exam and diagnose the Veteran. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds each examiner’s respective medical evaluation significantly credible and probative. Each examiner relied on accurate facts, a thorough in-person examination, considered and documented the Veteran’s relevant medical history and lay statements, and conducted a proper examination using a “Skin Diseases Disability Benefits Questionnaire.” The Veteran has offered lay evidence relevant to his claim for an initial compensable disability rating. During his August 2019 Board hearing, the Veteran’s spouse testified that the Veteran used over-the-counter skin cream “or something” to take care of his skin rash. August 2019 Board Hearing Transcript, at 7. The Veteran testified that his skin rash “comes and goes.” Id. at 8. As documented by the November 2020 VA examiner, the Veteran reported use of over-the-counter moisturizer. No further relevant lay evidence is located within the record. The Board finds the Veteran and his wife are competent to provide testimony and statements about what the Veteran uses in relation to his dermatitis. The Board also finds they are each credible and their respective testimony and statements are probative. Nevertheless, the Boards finds the most probative evidence of record is the medical evaluations of the July 2013 and November 2020 VA examiners. According to each examiner, the Veteran had visible characteristic lesions due to his dermatitis covering less than five percent of his total body area and less than five percent of his exposed body. This evidence corresponds to the 0 percent rating criteria found within DC 7806 both prior to and as of August 13, 2018. The Board observes that the VA medical examinations were completed approximately seven years apart. At most, what the medical evaluations suggest is that the Veteran’s dermatitis spread from his left hand to his arms. In between the time of the examinations, there is no medical or lay evidence of record that indicates or reasonably suggests the Veteran’s characteristic lesions spread any further across his entire body or an exposed area beyond his arms. The Board also has no reason to doubt either examiner’s cited percentages. Therefore, the Board finds that during the pendency of his claim, the Veteran’s characteristic lesions did not manifest as affecting at least five percent, but less than twenty percent, of his entire body or exposed area. Thus, a disability rating of 10 percent or higher is not warranted under either version of DC 7806 based on the percentage of characteristic lesions affecting the Veteran’s entire body or exposed area. See generally Johnson v. Wilkie, 30 Vet. App. 245, 247 (2015) (discussing “successive rating criteria” and 38 C.F.R. §§ 4.7, 4.21, requirements of the lower rating must be met to attain the higher rating.). Beyond the criterion of percentages, the Veteran may obtain a 10 percent rating based on “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,” 38 C.F.R. § 4.118, DC 7806 (prior to August 13, 2018), or “[i]ntermittent systemic therapy [excluding topical 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,” 38 C.F.R. § 4.118, DC 7806 (as of August 13, 2018). Under either version of DC 7806, the Board finds the evidence of record does not establish the criteria for a 10 percent rating during the pendency of the claim. The Veteran has generally described that he has used over-the-counter creams, moisturizers, such as Aveeno, or some other similar topical substance to control his dermatitis. He has not identified, nor reasonably suggested, that any moisturizer or other similar product that he has used was a corticosteroid, immunosuppressive, or similar substance. A “corticosteroid” is “any of various adrenal-cortex steroids (as corticosterone, cortisone, and aldosterone) that are divided on the basis of their major biological activity into glucocorticoids and mineralocorticoids.” Corticosteroid, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/corticosteroid, Medical definition, (last visited Feb. 5, 2021). The Board generally recognizes that some Aveeno products may contain cortisone, hydrocortisone, or some other corticosteroid. But the record is devoid of evidence that the Veteran used such products. The mere assertion that he used “Aveeno” provides no information about what type of “Aveeno” he used, when he began using it, or the extent to which he used it. The Board cannot speculate on these matters. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in [38 U.S.C §] 5107(b) is not applicable based on pure speculation or remote possibility). Nor is there medical or lay evidence that the Veteran has been prescribed corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs, or other similar substances. The Veteran’s “Active Outpatient Medications” from his VA medical records from January 2009 through October 2017 show no such prescriptions, nor has the Veteran generally asserted any such prescription at any point during the pendency of his claim. Therefore, without competent evidence that the Veteran used or currently uses corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs, or something that is similar to such substances, the Veteran is not entitled to a higher disability rating under either version of DC 7806. At most, the Board can discern that the Veteran used topical therapy, which is only consistent with the 0 percent rating criteria under each version of DC 7806. As the higher ratings under each version of DC 7806 only differ in frequency of use of systemic therapy—that is, systemic therapy (10% rating), intermittent systemic therapy (30% rating), and near-constant systemic therapy (50% rating)—the inability to satisfy the 10 percent rating criteria necessarily means the higher rating criteria cannot be satisfied. See generally Johnson, 30 Vet. App. at 247. For the sake of argument only, even if the Board were to assume the Veteran used a corticosteroid or something substantially similar, the Board would still find the Veteran is not entitled to a higher rating because his use would not constitute “systemic therapy” under either version of DC 7806. As of August 13, 2018, topical therapy is excluded from the definition of “system therapy.” 38 C.F.R. § 4.118(a) (2021). Furthermore, there is no competent medical or lay evidence indicating or reasonably suggesting the Veteran’s use of a corticosteroid or similar substance affected his body as a whole. Burton, 30 Vet. App. at 292. Therefore, the Veteran is not entitled to an initial compensable disability rating under either version of DC 7806. Finally, both versions of DC 7806 provide that a veteran’s dermatitis may be rated “as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability.” 38 C.F.R. § 4.118, DC 7806 (prior to and as of August 13, 2018) (also instructing that this rating instruction does not apply to DC 7824). Neither the medical nor lay evidence indicates or reasonably suggests that the Veteran had or has scarring of the head, face, or neck. Nor is there evidence of scarring in general such that DCs 7801, 7802, 7804, or 7805 are implicated. Therefore, this portion of DC 7806 is not applicable in this case. In summary, the Veteran’s skin rash (diagnosed as dermatitis) properly received an initial noncompensable disability rating under either the pre-amendment or post-amendment version of 38 C.F.R. § 4.118, DC 7806 (prior to or as of August 13, 2018). Throughout the pendency of the claim, the Veteran’s dermatitis required no more than topical therapy and manifested as characteristic lesions affecting less than five percent of his entire body area and/or his exposed body area. His topical therapy never consisted of systemic therapy under either version of DC 7806. Thus, an initial compensable rating is not appropriate nor are staged ratings appropriate under either version of DC 7806. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.