Citation Nr: 21013665 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-35 941 DATE: March 10, 2021 ORDER For the period prior to October 13, 2017, an initial compensable rating for the Veteran’s service-connected skin disability is denied. For the period since October 13, 2017, a higher rating of 10 percent, but not higher, for the Veteran’s service-connected skin disability is granted. FINDINGS OF FACT 1. Prior to October 13, 2017, shows that the Veteran’s skin disability affected less than five percent of his total body area and that his treatment was only topical. 2. Since October 13, 2017, the evidence shows that the Veteran’s skin disability has affected between five and twenty percent of his total body area and has only required topical treatment, with no argument or indication that the Veteran has required systemic treatment. CONCLUSIONS OF LAW 1. For the period prior to October 13, 2017, the criteria for a compensable disability rating for the Veteran’s skin disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. For the period since October 13, 2017, the criteria for a disability rating of 10 percent, but not higher, for the Veteran’s skin disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to August 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision. The Veteran testified at a Board hearing in October 2017. The Board remanded this matter skin matter in March 2018 and June 2020 for additional development. *** The January 2013 rating decision granted service connection for dermatitis of bilateral legs, bilateral arms and torso, rated as noncompensable, effective September 1, 2012. The Veteran appealed the assigned rating. Staged ratings are currently in effect for the Veteran’s skin disability. For the period prior to October 29, 2020, his disability is rated as noncompensable. For the period since October 29, 2020, it is rated as 10 percent disabling, per a November 2020 rating decision. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Dermatitis is rated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118, Diagnostic Code 7806. Prior to August 13, 2018, under the General Rating Formula for the Skin, a noncompensable rating is assigned for 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 months. A 10 percent rating is assigned for 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 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. A 60 percent rating is assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118. For claims filed prior to August 13, 2018, the Court 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. 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for 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 assigned for 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, 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 assigned at least one of the following: characteristic lesions involving more than 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 assigned for 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. *** A July 2012 VA examination shows a diagnosis of dermatitis. The Veteran had not received treatment, to include oral or topical medications, in the past 12 months. On physical examination, the Veteran’s dermatitis was found to affect less than five percent of his total body area and none of his exposed area. The examination was negative for any functional impact. While a March 2018 Board remand noted the 2012 VA examination to be inadequate, the Board notes that does not mean that the entire examination report does not contain evidence useful to rating the skin disability at issue. The information from the examination report noted in this paragraph are not part of the blanket inconsistence noted by the Board in 2018, but rather represent evidence that goes towards the relevant skin rating criteria. As such, the entire examination is not inadequate and the 2018 Board statement was overbroad. Additionally, the record contains other relevant lay and medical evidence that can be used to assess the Veteran’s skin disability picture, as will be discussed next. VA treatment records show treatment for chronic lichen planus over the legs, ankles, and forearms in September 2013. 10/20/2017, CAPRI, at 3. A June 2016 VA treatment note indicates that the Veteran had itchy lesions on his right lower leg and left ankle. 10/04/2017, Medical Treatment Record - Government Facility, at 100. Lichen planus is also referenced in a March 2017 treatment note. 10/17/2017, Medical Treatment Record - Government Facility, at 174. At his October 2017 Board hearing, the Veteran reiterated that his dermatitis regularly affects his lower extremities, specifically his calves, ankles, and feet. He mentioned that, during warm weather, symptoms worsen and can affect his arms and torso. He referenced use of topical cream to treat his symptoms. In a statement submitted shortly after the Board hearing, the Veteran added that flare-ups of his dermatitis during summer sometimes affect his face and groin area. A December 2019 VA examination shows diagnoses of dermatitis of bilateral legs, bilateral arms and torso, and lichen planus. The Veteran described his symptoms as scaling, itching, and pain in certain areas, aggravated during the summer or when sweating. Regarding the lichen planus, the examiner indicated that the Veteran had received phototherapy in June 2019 but had no current symptoms. Regarding the dermatitis, the Veteran had not received medication treatment in the last 12 months. On physical examination, the Veteran’s dermatitis was found to affect less than five percent of his total body area and none of his exposed area. The examination was negative for any functional impact. In September 2020, the Veteran submitted photographs showing skin symptoms in his left arm and lower legs. In October 2020, a VA examiner interviewed the Veteran and reviewed his record. The Veteran reported itchiness and redness, worse in the summer, when it spreads to torso and arms. Regarding recent treatment, the examiner endorsed topical medication treatment (corticosteroids or other immunosuppressive medications) for six weeks or more, but not constant, in the past 12 months. The examiner assessed that the Veteran’s skin disability affected five to twenty percent of his total body area and none of his exposed area. As described by the examiner, symptoms manifested around the medial and lateral ankles and over lateral aspects of the lower extremities below the knee. The examiner concluded that the Veteran’s skin disability did not impact his ability to work. *** Based on the evidence above, the Board finds that an earlier effective date for the currently assigned rating of 10 percent is warranted. More specifically, the Board finds that the Veteran meets the criteria for a rating of 10 percent from October 13, 2017, forward. On that date, the Veteran testified at a Board hearing. His testimony at the October 2017 Board hearing provides the earlies indication that he was experiencing exacerbations of his skin symptoms during the summer. Up to that point, the Veteran had only reported symptoms in his lower legs and forearms. At the Board hearing, he first testified that, during the summer, he experienced symptoms in other parts of his body, specifically his torso. As such, it was now factually ascertainable based on this competent evidence. In a subsequent statement, he reported seasonal flare-ups in the face and groin area. The October 2020 VA examiner concluded that the Veteran’s skin disability affected five to twenty percent of his total body area and none of his exposed area. This assessment meets the criteria, and is the basis for, the currently assigned rating of 10 percent. Resolving doubt in favor of the Veteran, the Board finds that the level of severity shown in the October 2020 VA examination applies to the period since October 13, 2017, as the Veteran’s symptoms appear to have been stable during that period. As such, the earlier effective date of October 13, 2017, is warranted for the currently assigned rating of 10 percent for dermatitis. An earlier effective date is not warranted, as there is no evidence prior to that date, indicating that the Veteran’s disability had worsened to the point of meeting the criteria for a rating of 10 percent. Rather, a June 2016 VA treatment note indicates that the Veteran had lesions only on his legs, with no mention of symptoms in his arms, torso, or any other area of his body. He was prescribed topical medication for a period of less than six weeks. 10/04/2017, Medical Treatment Record - Government Facility, at 100. Significantly, this treatment visit was in mid-June, when there is likely to be warm weather. To reiterate, for the period prior to October 13, 2020, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s skin disability does not more nearly approximate 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. The Board similarly finds that, for the period prior to October 13, 2020, the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s skin disability does not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12- month period. Rather, the evidence shows that the Veteran’s skin disability affected less than five percent of his total body area and that his treatment was only topical. For the period since October 13, 2020, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s skin disability does not more nearly approximate 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. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s skin disability does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. As discussed above, the evidence shows that, at worst, the Veteran’s skin disability has affected between five and twenty percent of his total body area and has only required topical treatment. There is no indication that the Veteran has required systemic treatment for his skin disability. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include the extent of his symptoms, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. His statements are outweighed by the competent medical evidence of record gather by trained medical professionals for the purpose of assessing his service-connected skin disability. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. (Continued on the next page)   In conclusion, the Board finds that the preponderance of the evidence supports an earlier effective date for the currently assigned rating of 10 percent but is against a finding that the Veteran is otherwise entitled to a higher rating. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.