Citation Nr: 21011616 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-33 689 DATE: March 2, 2021 ORDER Entitlement to a compensable disability rating for service-connected traumatic dermatitis of the left leg with recurrent cellulitis (a skin disability) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected skin disability has affected less than five percent of the total body area, exposed areas are not affected, and the disorder has not required systemic therapy as prescribed by a medical professional. CONCLUSION OF LAW The criteria for a compensable disability rating for a service-connected skin disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in February 2019 and August 2020 where it was remanded for additional development. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2018. The Board notes that additional VA treatment records have been associated with the record since the last supplemental statement of the case. However, these records are not relevant to the issue being decided below. Thus, initial review of the evidence by the Board with respect to the claim on appeal is appropriate. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1305(c). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Increased Rating The Veteran filed a claim for an increased, compensable rating for his service-connected skin disability in May 2015, which was denied in the rating decision on appeal. For the reasons that follow, the Board concludes that the Veteran’s disability picture, to include his statements, does not more nearly approximate the degree required for a higher or separate rating. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s disability is rated pursuant to Diagnostic Code 7806 for dermatitis or eczema, under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the old version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change effective August 13, 2018, under Diagnostic Code 7806, a 10 percent disability rating is warranted where 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 are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). As of August 13, 2018, under the amended criteria, the General Rating Formula for the Skin provides that a 10 percent rating will be warranted where there is at least one of the following: 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, psoralen with long-wave ultraviolet-A light (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, General Rating Formula For The Skin. For claims filed prior to August 13, 2018, the United States Court of Appeals for Veterans Claims held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (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). Only the second question need be addressed if the treatment is clearly systemic. Id. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under Diagnostic Code 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. See also Burton, 30 Vet. App. 286 (finding that the Federal Circuit in Johnson did not mean to limit the “factual circumstances” by which topical treatment may become a systemic therapy under Diagnostic Code 7806 to only situations involving large scale topical application). Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Here, the preponderance of the evidence shows a compensable disability rating for the Veteran’s dermatitis is not warranted at any time under either version of the regulations. In this regard, the medical evidence of record, including VA examinations in June 2015 and December 2019 (with a clarifying addendum in October 2020), reflects that the Veteran’s dermatitis affects less than 5 percent of the entire body with no exposed areas affected. The Board acknowledges that a Disability Benefits Questionnaire ( DBQ ) submitted by the Veteran in May 2015 suggests that the Veteran was treated with both a systemic and a topical corticosteroid. While it is relatively illegible, the physician appears to have listed the same medication twice. Review of the Veteran’s other medical records at the time, including the subsequent June 2015 VA examination as well as the transcript of his hearing before the undersigned in 2018, confirms that the medication prescribed specifically for this disability at the time was topical Voltaren (Diclofenac), with no systemic corticosteroids or other immunosuppressive medications. While VA treatment records do note oral Diclofenac, Diclofenac is a non-steroidal anti-inflammatory drug used to relieve pain, inflammation, and joint stiffness, while its topical form is used to treat skin conditions. Indeed, a March 2011 record indicates that oral Diclofenac was prescribed to treat arthralgia. Thus, and while the Board acknowledges that the Veteran’s use of topical treatment was noted in the May 2015 DBQ to be constant or near-constant, at no time during the period on appeal has the Veteran’s topical treatment constituted “systemic therapy” for the purposes of either version of Diagnostic Code 7806. Even if it had, the medication is not like a corticosteroid or immunosuppressive drug; it is a non-steroidal anti-inflammatory drug. The Board has considered whether any other diagnostic codes pertaining to the skin are applicable in this case under both the amended VA regulations and the VA regulations in effect prior to August 13, 2018. While Section IV of the May 2015 DBQ indicates non-debilitating primary cutaneous vasculitis, the remaining record, including his treatment records and his subsequent VA examinations, is absent this diagnosis. Notably, the Veteran is not service connected for primary cutaneous vasculitis. It is possible the examiner in 2015 was unsure of how to best describe the Veteran’s skin disability, using Section IV to describe the non-debilitating episodes of the Veteran’s dermatitis. Moreover, Section I of the DBQ notes only a diagnosis of chronic dermatitis; primary cutaneous vasculitis was not checked. Thus, the Board finds the evidence against a finding that a compensable rating could be warranted under Diagnostic Code 7826 for primary cutaneous vasculitis, and the Veteran has not been diagnosed with any of the additional disabilities contemplated by Diagnostic Codes 7815 to 7833. The Board also acknowledges that the area of the Veteran’s leg where his service-connected skin disability is located also contains a scar at the center, which he has explained is related to an in-service incision to drain the initial manifestation of his now-service-connected skin disability. However, examinations during the appeal reflect that the scar measures no more than 4 centimeters by 2 centimeters, and has not itself been unstable, painful, or otherwise disabling. Therefore, a rating under Diagnostic Codes 7800 to 7805 is also not appropriate under either the previous or amended rating regulations. Thus, as the evidence is against a finding that the Veteran’s skin disability more nearly approximates the criteria for a higher rating, entitlement to a compensable rating is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.118. The Board is sympathetic to the Veteran’s lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.