Citation Nr: 21021587 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-44 758 DATE: April 13, 2021 ORDER Entitlement to an initial 60 percent rating for scars of the bilateral upper extremities, due to discoid lupus erythematosis, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s scars of the bilateral upper extremities, currently separately rated as scars of the left upper extremity and scars of the right upper extremity, required constant or near-constant systemic therapy. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for scars of the bilateral upper extremities, due to discoid lupus erythematosis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7809. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to June 1994. In September 2018, the Board denied the current claim. Additional claims for entitlement to an increased rating for scars of the head, scalp and face, prior to February 9, 2016 were denied, as was an earlier effective date claim for entitlement to service connection for scars of the head, scalp, face and bilateral upper extremities. In April 2019, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR). The parties agreed the Board failed to consider Diagnostic Code 7809 for the Veteran’s discoid lupus. The Court did not disturb the Board’s denial as to entitlement to an increased rating for scars of the head, scalp, and face, prior to February 9, 2016 or the denial for an earlier effective date for entitlement to service connection for scars of the head, scalp, face, and bilateral upper extremities. In a July 2019 decision, the Board once again denied entitlement to an initial compensable rating for scars of the bilateral upper extremities, due to discoid lupus. The Veteran appealed, and the Court granted a January 2020 JMR. See January 2020 JMR. The Board remanded the claim in April 2020. Additional development was completed, and a January 2021 supplemental statement of the case was issued. The Board notes that in a January 2021 rating decision, issued on the same date as the January 2021 SSOC, the RO essentially split the Veteran’s rating for scars of the bilateral upper extremities, into two ratings: (1) a noncompensable rating for scars of the right upper extremity and (2) a noncompensable rating for scars of the left upper extremity. With the decision below, the Board grants a 60 percent rating for the entire period on appeal for the systemic effects of medication taken for the Veteran’s bilateral upper extremities as a whole. As such, the Board has recharacterized the issue as one for entitlement to a higher rating for scars of the bilateral upper extremities. Finally, in addition to the skin disability currently on appeal, the Veteran is currently in receipt of an 80 percent rating for his scars of the head, scalp, and face under Diagnostic Code (DC) 7800 and is separately rated at 30 percent for painful scars of the head, scalp and bilateral upper extremities under DC 7804. These ratings are not currently before the Board and will not be discussed in the decision below. 1. Entitlement to an initial compensable rating for scars of the bilateral upper extremities, due to discoid lupus erythematosis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of a staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Prior to August 13, 2018, under DC 7806, a noncompensable rating was 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 was 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 was 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 was 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 (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. Under the prior version of 38 C.F.R. § 4.118, the Court held in Johnson v. McDonald that the use of a topical steroid constituted systemic therapy within the meaning of Diagnostic Code 7806. 27 Vet. App. 497, 505 (2018). Thereafter, in Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed this decision and determined that constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. 862 F.3d 1351, 1352 (Fed. Cir. 2017). The Federal Circuit found that systemic therapy meant treatment pertaining to or affecting the body as a whole, while topical therapy meant 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. Id. at 1355 (citation omitted). 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. Id. Thus, in a given case, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances. Following the Federal Circuit’s decision, the Court again addressed systemic therapy in the context of topical treatment in Burton v. Wilkie. 30 Vet. App. 286 (2018). The Burton court stated that, when considering topical therapy as systemic therapy, the Federal Circuit’s Johnson decision was not limited to situations involving large-scale application of topical treatment. Id. at 291. Rather, the Court held that there are at least 2 other potential ways of showing that a topical treatment is systemic: (1) the method by which the topical treatment works, and (2) its side effects. Id. Effective August 31, 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 DCs 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, 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. 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, 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 (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. If 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. 38 U.S.C. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. Under the new rating criteria, DC 7809 provides that discoid lupus erythematosus be evaluated under the General Rating Formula for the Skin. It is noted that rating should not be combined with ratings under DC 6350. Under the old rating criteria, DC 7809 notes that it should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806) depending on the predominant disability. The rater is again instructed not to combine with ratings under DC 6350. The Veteran underwent an initial May 2014 VA skin examination. It was noted that he was taking topical corticosteroids for six weeks or more, but not constant during the past 12 months for his discoid lupus. The Veteran underwent an additional examination in September 2015. In a November 2015 addendum opinion, it was noted that the Veteran’s total area of the upper extremity scars was 120.99 cm2. A February 2016 VA examination noted that the Veteran has been treated with both oral and topical medications to control the disease process of lupus erythematosis. In a statement signed March 2020, the Veteran reported using topical steroids for at least 6 months out of the past year continuously since he was first prescribed topical steroids in 1999. He reported that the history of his long-term use of topical steroids and the systemic side effects are clear from the medical exams and treatment notes in his file. The Board confirms that treatment records throughout the course of the lengthy appeal period confirm that the Veteran has been prescribed topical medications, and even Prednisone at various times. See March 2008, October 2008, January 2009, June 2012, July 2015 VA treatment records. Specific time frames for how long the Veteran has been on this medication are not generally summarized; however, it is clear that as a whole the evidence reflects use of at least topical corticosteroids on a constant or near-constant basis. In a February 2020 VA physician note, it was noted that the Veteran was being treated by a dermatologist for his discoid lupus with topical steroid cream. The physician noted that the literature does show that in some cases, topical steroids can be absorbed into the blood stream and cause systemic symptoms. In a handwritten note from another doctor, submitted in April 2020, it was noted that there is literature that recognizes suppression of the hypothalamic-pituitary-adrenal axis and the Veteran has been on multiple medications, including Clobetasol and Betamethasone Dipropionate, that are listed in the article. He concluded that this means topical steroids can affect the body as a whole, not just the skin. At a January 2021 VA examination, it was noted that the Veteran takes two tablets of Prednisone daily for 3 days, and has used Betamethasone Valerate .1% lotion (last filled May 2017), and Betamethasone Diproprionate .05/Clotrim 1% cream (last filed July 2020). It was noted that this medication is both oral and topical and it is used on a constant/near constant basis. It was noted that his discoid lupus erythematous covers 5 percent to less than 20 percent of the total body area and 5 percent to less than 20 percent of his exposed area. A medical opinion at that time considered the February 2020 and April 2020 opinions submitted by the Veteran supporting that topical corticosteroids can affect the body as a whole and not just the skin. The VA examiner noted that both medical opinions are supported with the existence of the medical literature confirming that some of the topical steroids this Veteran was prescribed to treat his lupus are considered to affect the body as a whole. An additional opinion noted no use of immunosuppressive drugs. Under the Diagnostic Code 7806 prior to August 13, 2018, systemic therapy meant treatment pertaining to or affecting the body as a whole. The Board finds that the Veteran’s use of topical corticosteroids, as supported by the two medical opinions submitted by the Veteran and the most recent January 2021 VA opinion, reflect that they constitute systemic therapy, because it is treatment pertaining to the body as a whole and not localized treatment to a particular surface area. See Johnson, 862 F.3d 1355. As such, the Veteran’s constant or near-constant use of systemic therapy, entitles him to a 60 percent disability rating under the old regulation for Diagnostic Code 7806. Alternatively, under the new regulations, systemic therapy is redefined as treatment administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118(a) (August 13, 2018). This bright-line rule would essentially prevent the Veteran from obtaining an increased rating. Thus, the Veteran is entitled to a 60 percent disability rating, the maximum rating, for a skin condition under the old Diagnostic Code 7806. The Board has considered whether there are any other diagnostic codes that may afford the Veteran a rating higher than 60 percent. However, as previously noted, the Veteran is already in receipt of separate ratings under DC 7800 and 7804 which are not in appellate status. Additionally, ratings under 7801 or 7802 would not provide for higher ratings, under either the new or old regulations. The Board notes that, in this case, awarding a separate 60 percent rating for the Veteran’s bilateral upper extremities under DC 7806 does not result in impermissible pyramiding, as his rating under DC 7804 considers pain which is separate and distinct symptomatology. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, it should be noted that under the old DC 7806, the rater is instructed, in the alternative, to “rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.” As such, to the extent that his current rating under DC 7804 considers the Veteran’s symptomatology for his bilateral upper extremities, his 60 percent rating under DC 7806 is now his predominant rating for his bilateral arms. As a result, the Board finds that an initial 60 percent rating, but no higher, is warranted for scars of the bilateral upper extremities, due to discoid lupus erythematosis. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.