Citation Nr: 21014496 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-02 052 DATE: March 12, 2021 ORDER An initial 10 percent rating for dermatitis with eczema is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, he has shown that at least five percent, but less than twenty percent, of the entire body is affected by his skin condition. CONCLUSION OF LAW The criteria for an initial 10 percent rating for dermatitis with eczema have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 to March 1995. The Veteran provided testimony before a Veterans Law Judge at a December 2016 Board hearing. A complete transcript is of record. In an October 2019 letter, the Board informed the Veteran that the VLJ who had held the hearing had since retired from the Board, and the Veteran was offered the opportunity to testify at another Board hearing. The Veteran did not request another hearing within the allotted 30 days. As such, the Board may proceed with appellate review. VA received the Veteran’s service connection claim for a skin condition on August 8, 2012. A subsequent May 2013 rating decision granted service connection and assigned a noncompensable rating for dermatitis with eczema. The Veteran disagreed with the assigned rating and this appeal ensued. Here, the relevant period on appeal begins on August 8, 2012. This issue was previously before the Board in May 2017 and in December 2019. The May 2017 Board decision remanded the increased rating claim for a new VA examination because the Veteran stated that his skin condition had worsened since a May 2013 VA skin examination. The Veteran was afforded VA examinations in April and November 2018. Although the requested development was undertaken, the December 2019 Board decision noted that there were recent developments in case law regarding skin disorders. Specifically, the Board found that medical evidence was necessary to guide its analysis of whether any of the Veteran’s past or current treatments for his skin disorder constituted “systemic therapy such as corticosteroids or other immunosuppressive drugs” within the meaning of Diagnostic Code 7806, to include both the pre- and post-August 13, 2018 version of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Burton v. Wilkie, 30 Vet. App. 286 (2018); Warren v. McDonald, 28 Vet. App. 194 (2016). The Veteran was afforded a VA examination in October 2020 and a medical opinion regarding whether the Veteran’s past or current treatments for his skin disorder constituted systemic therapy was provided. As such, the Board finds that there has been substantial compliance with the December 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An initial 10 percent rating for dermatitis with eczema is granted. The Veteran asserts that he is entitled to a 10 percent rating because his skin condition affects many parts of his body including both of his underarms, the front and back of his legs, his chest, his shoulders, and his buttocks. See Notice of Disagreement (NOD) received June 19, 2013 and Form 9 received January 12, 2015. Dermatitis is evaluated under the General Rating Formula for Skin Disorders. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating in warranted where at least five percent, but less than twenty percent, of the entire body, or at least five percent, but less than twenty 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 disability rating is warranted where 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 warranted where 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. 38 C.F.R. § 4.118. Following a careful review of all the evidence of record, to include the Veteran’s VA treatment records, VA examination reports, and the competent and credible lay statements, the Board resolves reasonable doubt in favor of the Veteran and is satisfied that the Veteran has shown that his service-connected skin disability affects at least five percent, but less than twenty percent of his entire body. However, the weight of the evidence is against finding that the Veteran has used systemic therapy at any time during the course of his appeal to treat his skin disorder. The Veteran was afforded a VA examination in May 2013, at which he developing eczema in both of his armpits, the inner thighs, and the back of his calves. The examiner reported that the skin rash was intermittent and was asymptomatic during the examination. The examiner indicated that the Veteran was treated with topical corticosteroids, that he used constantly. On examination, the examiner reported that the Veteran’s dermatitis and eczema affected less than five percent of his body. The Veteran testified that he experienced flare-ups with his skin condition. He stated that if he is overheated or in the sun, he gets itchy and breaks out. He testified that his skin condition affects his legs, armpits, groin, chest, and neck. He testified that he has been treated with creams and other things, but did not soothe his skin problems. The Veteran was afforded a VA examination in April 2018. The examiner reported that the Veteran was not experiencing a flare of eczema during the examination, but reported that it affected his trunk and legs when it occurs; he described the rash as an outbreak that is itchy and irritating. The Veteran was afforded a VA examination in November 2018. The Veteran reported having outbreaks on the anterior and posterior trunk, on both lower legs, and in the groin. He expressed frustration that he has not been able to get his skin condition under control, even with the use of topical washes, creams, and moisturizers. The examiner indicated that the Veteran used constant topical medication to treat his skin disorder. The examiner reported that the Veteran’s dermatitis affected 20 to 40 percent of his total body. The Veteran was afforded a VA examination in October 2020. The Veteran reported that his skin condition had worsened, since the onset during his active duty service. He complained of skin irritation and inflammation that was itchy in areas across his entire body, at one point in time. He reported that he still used the shampoos and skin creams for his skin condition. He also reported that the condition comes and goes. The examiner indicated that the Veteran uses topical medications to treat his skin condition. The examiner reported that the Veteran’s skin condition affected less than five percent of his total body; and indicated that he had a dry rash in the groin folds and dry scaly skin on the elbows. The examiner also reported that the Veteran had a skin condition without any visible characteristics at the time of the examination. The examiner noted that the Veteran had pictures to show his blistery rash and areas of dry eczema and his wife reported flare-ups where his rash presents a much larger scale. The examiner reported that his rash was not currently at its full potential and flare-ups occurred about 4-6 times per year. The examiner also provided a medical opinion regarding the treatment for his skin condition. The examiner noted that the Veteran took an oral steroid, but was not for his skin condition. The examiner reported that the Veteran was prescribed two topical treatments, with one being a corticosteroid. The examiner explained that the non-corticosteroid medication was used to treat the itching, redness, dryness, crusting, scaling, inflammation, and discomfort; while the topical corticosteroid was used to reduce swelling, redness, and itching. The examiner noted that the Veteran’s skin condition does not warrant an oral medication. The Veteran’s VA treatment records shows that he was being followed for his skin condition, during the period on appeal; however, there was no description of his symptoms or how much of his body was affected by the skin condition. The Board will first address whether the Veteran is entitled to a higher disability rating based upon the medication used to treat his skin condition. The Federal Circuit Court has held 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, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects “only the area to which it is applied” to count as a systemic therapy under the Code. However, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case and does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). On August 13, 2018, the VA adopted new regulations for skin disorders. Under the new regulations 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. 83 Fed. Reg. 32,592 (July 13, 2018). The new regulations create a bright-line definition of topical and systemic treatment therapies. Prior to this change, the regulations did not define topical or systemic treatment and the determination of whether a Veteran received topical or systemic treatment was based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). As the Veteran filed a claim for service connection prior to August 13, 2018 and his appeal for an increased rating was pending on August 13, 2018, the Board will consider both the new and old regulations and apply the most favorable. 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. The Board must thus consider two questions, in any order, when determining whether topical treatment for a skin disorder constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs” under the pre-August 13, 2018 version of Diagnostic Code 7806: a) Whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition; and b) Whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Only the second question needs to be considered if the treatment is clearly systemic. Here, the Board finds that the Veteran’s medication regiment is consistent with topical, rather than systemic therapy. The October 2020 VA examiner explained that the Veteran did not use oral medications for his skin condition at any time during the appeal, nor were oral medications necessary. The Veteran has been prescribed two different medications, both of which were applied directly to the affected areas of the skin. Additionally, the Veteran and VA examiners have reported that he used soaps and shampoos to alleviate his symptoms. There is no indication that the Veteran has used oral corticosteroids or any other immunosuppressive drugs to treat his skin condition. Notably, VA examinations indicate that the Veteran did not demonstrate any systemic manifestations of a skin disease. The Veteran’s treatment records indicate that he used treatment for particular surface areas of his skin rather than for his entire body. There is also no suggestion that his medication is like a corticosteroid or immunosuppressive drug. Accordingly, a compensable disability rating under Diagnostic Code 7806 based upon treatment of the Veteran’s skin condition is not warranted at any time during the appeal period. 38 C.F.R. § 4.118. The Board will next address whether the Veteran is entitled to a higher disability rating based on upon the percentage of areas affected. Here, the Veteran’s service-connected dermatitis with eczema is rated as noncompensable. A compensable rating requires at least five percent, but less than twenty percent for the entire body affected, or at least five percent, but less than twenty percent of exposed areas affected. The May 2013, April 2018, and the October 2020 VA examiners all reported that the Veteran’s skin condition affected less than five percent of his entire body. However, the Veteran has consistently reported during the period on appeal that his skin condition is intermittent and affects many parts of his body including both of his underarms, the front and back of his legs, his chest, his shoulders, and his buttocks. This assertion has not been corroborated by the Veteran’s treatment records. However, his assertion was corroborated by the November 2018 VA examiner, who confirmed that his anterior and posterior trunk, groin, and bilateral lower extremities were affected. The Board acknowledges that the November 2018 examiner also reported that the Veteran’s skin condition affected twenty to forty percent of his entire body. However, the Board finds this finding to be an anomaly. The Veteran was afforded four VA examinations during the period on appeal, and three VA examiners found that his skin condition affected less than five percent of his body. The Board has also reviewed the photographs the Veteran submitted, showing his skin condition. See Photographs received December 15, 2016. The photographs appear to show his ankle, legs, and wrist areas; and showed bumpy areas on the ankle and legs and red and inflamed areas on his wrists. Here, the Board finds that the clinical evidence of record, in conjunction with the Veteran’s consistent reports and credible testimony that his skin condition affects many areas of his body, supports finding that his skin condition affects at least five percent, but less than twenty percent of the entire body. Although the November 2018 VA examiner checked the box holding that his skin condition affected twenty to forty percent of his body, the contemporaneous clinical evidence of record does not support such a finding, and no photos were submitted documenting such. As previously mentioned, the May 2013, April 2018, and the October 2020 VA examiners all reported that the Veteran’s skin condition affected less than five percent of his entire body. Further, the photographs the Veteran submitted, which only shows his ankle, legs, and wrist areas, does not suggest that his skin condition affects more than twenty percent of his body. The Board recognizes that the photographs do not depict his anterior and posterior trunk or his groin. However, the submitted photographs of his ankles, legs, and wrists show that only a small portion of those areas are affected. In other words, the depicted areas do not show that the entire wrist, ankle, or leg are area affected by the skin condition. The Board also points out that the October 2020 VA examiner noted that the Veteran’s skin condition had characteristic lesions that were not visible at the time of the examination. This note shows that it is possible that the previous VA examiner who found that his skin condition did not affect more than five percent of his entire body, did not consider the lesions that were not visible at the time of the previous examinations. Further, the Veteran’s skin condition has been noted to be intermittent and he was not having a flare-up when the May 2013, April 2018, and the October 2020 VA examiners all reported that the Veteran’s skin condition affected less than five percent of his entire body. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran meets the five percent threshold necessary for a 10 percent rating, but not more. The Board has considered all potentially applicable provisions of 38 C.F.R. § 4.118 for skin disorders, whether or not they have been raised by the Veteran. Here, the Board finds no provision upon which to assign the Veteran a rating in excess of 10 percent for dermatitis with eczema. Accordingly, the Board agrees with the Veteran, that he is entitled to a 10 percent rating for his service-connected dermatitis with eczema and assigns an initial 10 percent rating. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.