Citation Nr: 21011248 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-41 439 DATE: March 1, 2021 ORDER For the entire rating period on appeal, a maximum rating of 60 percent for psoriasis is granted. FINDINGS OF FACT 1. For the appeal period prior to August 13, 2018, the Veteran’s psoriasis disability covered more than 40 percent of the entire body area. 2. For the appeal period beginning August 13, 2018, the Veteran’s psoriasis disability resulted in constant or near-constant systemic therapy involving, 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. CONCLUSION OF LAW For the entire appeal period, the criteria for a rating of 60 percent for psoriasis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7816 (prior to and effective August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to August 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal of the July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 30 percent disability rating for psoriasis and denied service connection for psoriatic arthritis. In August 2019, the Board denied an increased rating for psoriasis and granted service connection for psoriatic arthritis as secondary to his psoriasis. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In August 2020, the Court granted the Parties’ Joint Motion for Partial Remand (JMPR), which vacated the August 2019 Board decision regarding only the psoriasis claim and remanded the claim to the Board. In the JMPR, the parties agreed that the August 2019 Board decision relied on an older version of 38 C.F.R. § 4.118 to conclude that a higher rating was not warranted. The Court noted that under Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), where a regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply unless Congress provided otherwise or permitted by the Secretary. As such, the failure of the Board to consider the new regulation frustrated judicial review and was contrary to the holding in Kuzma. The claim now returns to the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Laws and Analysis The Veteran’s service-connected psoriasis is rated as 30 percent disabling for the entirety of the period on appeal under DC 7816. Effective August 13, 2018, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating skin disorders. Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, VA has made clear that its 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. As the Veteran’s claim was pending prior to August 13, 2018, the Board will consider entitlement under the prior regulations as well as the updated regulations from August 13, 2018 forward, applying the most favorable criteria for the Veteran. Prior to August 13, 2018, under 38 C.F.R. § 4.118, DC 7816, for psoriasis, a maximum 60 percent rating is warranted where the skin disability 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. A 30 percent rating is warranted where the skin disability covers 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. Under the schedular criteria in effect from August 13, 2018, 38 C.F.R. § 4.118, DC 7816 states that psoriasis should be evaluated under the General Rating Formula for the Skin. The General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824 provides that a maximum 60 percent rating is warranted where there are at least one of the following: 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 involving, 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. A 30 percent rating is warranted where there are at least one of the following: characteristic lesions involving 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 determination of which criteria are more beneficial to the Veteran may depend upon how the terms “topical therapy” and “systemic therapy” are defined. Under the criteria effective from August 13, 2018, for the purposes of 38 C.F.R. § 4.118, 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. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of the skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. Pre-2018 regulations do not define these terms and applicable cases indicate that this determination must be made on a case-by-case basis with the examiner providing a complete rationale for the therapy classification. Warren v. McDonald, 28 Veteran. App. 194 (2016); Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For claims filed prior to August 13, 2018, caselaw indicates that systemic therapy is the type that affects the entire body in its treatment of the condition at issue, and, in determining whether a claimant is receiving such therapy, the Board must review (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). If the treatment is clearly systemic, only the second question need be addressed. Id. In addition, the United States Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under Diagnostic Code 7806. Johnson v. McDonald, 27 Vet. App. 497 (2016). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the VA Secretary that the Court erred when it “read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of systemic therapy.” The Federal Circuit noted that Diagnostic Code 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” The Federal Circuit went on to explain 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.” 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. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  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).  Turning to the evidence, a January 2012 VA treatment record noted the Veteran had 10-week treatment of PUVA therapy but had not had the treatment in 3 years. See January 2012 VA Treatment Record. A May 2016 VA compensation examination noted the Veteran was treated with topical creams 6 weeks or more, but not constantly in the past 12 months, and PUVA treatment constantly or near constantly but the most recent treatment was in 2006. The examiner found his psoriasis covered 20 to 40 percent of his total body but none of the exposed area. See May 2016 VA examination and report. In a September 2016 private treatment record, a physician’s assistant noted the psoriasis was located on the leg and arm, was of moderate severity, and was distributed on the trunk, right superior medial back, sternum, left medial upper back, left inferior upper back, right superior medial lower back, right inferior lateral lower back, left anterior distal thigh, and right anterior proximal thigh. The physician’s assistant found the body surface area coverage was 40 percent. The Veteran reported that he had tried narrow band UVB treatment and topical foam but was not current on any treatment. At that visit, he was prescribed topical steroids to apply to treat his flare ups and it was noted biologics and methotrexate could be another possible treatment if the topical steroids did not help. See September 2016 Private Treatment Record. In February 2017, the Veteran was seen by a nurse practitioner, who noted the Veteran stated his psoriasis had been stable, that the psoriasis was present on both legs from his lower back to his knees, and typically covers 40 percent of his body surface area. The nurse practitioner noted that his dermatologist had used light box therapy with some success. Treatment was discussed and it was decided to try methotrexate and folic acid. See February 2017 Private Treatment Record. A private narrative report was provided by Dr. M.X. in March 2017, which stated the Veteran was started on methotrexate 10 milligrams once weekly, with the plan to increase to 20 milligrams over the next several weeks, and he was also prescribed folic acid 1 milligram and he was planned to begin Enbrel 50 milligrams once weekly. See March 2017 Private Narrative Report. Another VA compensation examination was provided in July 2017. The examiner noted the Veteran had been taking oral medication methotrexate constantly or near constantly and had UVB treatment, with the most recent treatment in 2006 for less than six weeks. The examiner found the total body area coverage was 5 to 20 percent, and total exposed area was less than 5 percent. See July 2017 VA Examination and Report. A March 2020 VA treatment record indicated the Veteran was prescribed Otezla 30 milligrams to take twice per day, as prescribed by Dr. M.X. See March 2020 VA Treatment Record. In a November 2020 private treatment record, the Veteran reported his body surface area coverage was 45 percent when he was in active duty and light therapy helped significantly, but due to scheduling he could not do that at this time. He also stated that upon moving to the northwest his psoriasis became worse. A physician’s assistant noted he started Otezla 30 milligrams which worked extremely well and that his body surface area coverage at his last appointment was 15 percent, and that day it was 1 percent. See November 2020 Private Treatment Record. Analysis For the appeal period prior to August 13, 2018, the Veteran’s psoriasis disability manifested by coverage of more than 40 percent of the entire body exposed area; and for the appeal period from August 13, 2018, a rating of 60 percent for psoriasis is warranted as the Veteran underwent systemic therapy as defined by the current regulation. The May 2016 VA skin examination showed that the Veteran’s psoriasis covered 20 to 40 percent of the total body area. At that time, the examiner noted that the psoriasis involved the Veteran’s arms, legs, and back. However, the Veteran reported in his May 2017 Notice of Disagreement that his psoriasis covered his back, chest, stomach, arms, and legs and that put him in the classification of more than 40 percent of the entire body. The Board notes that the Veteran is competent to report on the location of his psoriasis as this information is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the Veteran competently and credibly reported impacted areas in addition to those noted by the May 2016 examiner, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s skin disability affected more than 40 percent of his entire body. Further, the evidence showed that beginning February 27, 2017, the Veteran was taking methotrexate, an immunosuppressant drug, to treat his psoriasis and which the May 2017 VA examiner noted he took constantly or near constantly. In fact, Dr. M.X. indicated he was taking it weekly. He later began taking Otezla daily, which is also an immunosuppressant drug, for treatment of his psoriasis and psoriatic arthritis. As this meets the definition of systemic therapy under the current regulation, a rating of 60 percent for psoriasis is approximated. Therefore, in light of the evidence, and providing the Veteran the benefit of the doubt, a 60 percent rating is approximated for the entirety of the rating period on appeal. This is the highest rating under the general rating formula for the skin; as such, a higher rating is not warranted. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, in the private physician provided disability benefits questionnaire, the physician noted the Veteran works at an office and that, while prolonged sitting at his employment may cause an increase in the severity of his psoriatic arthritis, it did not indicate he was unable to obtain or maintain substantially gainful employment. Therefore, Rice is inapplicable. The Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.