Citation Nr: 21021680 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-03 387A DATE: April 13, 2021 ORDER Entitlement to a disability rating of 60 percent for eczema is granted. Service connection limitation of motion of the bilateral hands, as secondary to service-connected eczema, is granted. REMANDED The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected disabilities is remanded. THE VETERAN’S CONTENTIONS The Veteran seeks an increased rating for his service-connected eczema. In March 2017, he contended that the deterioration of his skin from constant systematic therapy with corticosteroids for 25 years should be rated 60 percent disabling. He stated that the swelling of both hands resulted in a limitation of motion of his fingers. See August 2017 correspondence; September 2017 claim. In the Veteran’s November 2017 notice of disagreement (NOD), he stated that the decision did not address secondary effects of eczema and long-term steroid use, to include numbness, swelling, limitation of motion of the fingers, decreased fine motor skills and grip strength, and tremors. He contended that these symptoms caused difficulty using tools and that he experienced functional loss of the hands due to these problems. See November 2017 NOD. In August 2018, the Veteran asserted that the examiner did not address whether the Veteran’s long term use of prescribed topical steroids contributed to or caused his hand tremors, and thus, his rationale was inadequate. He further stated that the previous VA examiner acknowledged a causal link. See August 2018 statement in support of claim. The Veteran asserted that he should receive “a separate analogous rating for his mild bilateral tremors under DC 9512.” See February 2019 VA Form 9. He contended that the tremors are secondary to his eczema because the treatment for his eczema, long term use of topical steroids, caused his tremors. He further noted that the condition affected his ability to work because he could not pick up objects without difficulty. Id. In a December 2020 statement, the Veteran contended that he experienced functional loss in the use of his hands due to his service-connected eczema. He noted that the most recent examiner attributed his hand problems to his work as a mail carrier and his woodworking hobby; however, he disagreed. He argued that his duties as a mail carrier involved handling mail with the inside of his fingers and the palm of his hand, and that he had been able to do those duties for many years. He asserted that the functional loss of use of his hands was related to eczema, not his job. Specifically, he stated that his symptoms are due to lack of elasticity of the skin due to his eczema. He noted that he has used VA prescribed ointments, including steroids, for the past 25 years, and this due to long-term topical steroid use, his skin is thinning and is increasing more sensitive. He noted that he developed tremors in his hands that occur when he uses his hands, and that he used topical steroids daily and frequently took oral antihistamines for itching. He explained that the pain in his hands is external, not internal in the joints; that his hands were always covered with thick patches of eczema that were itchy, painful, and cracked; and that the skin on his fingers and the back of his hands was stiff and tight so he had no elasticity in his hands and fingers. He also reported that his hands bruise and injure easily. He noted that the eczema affected his ability to hold small items, such as knives, forks, small tools, his screwdriver, and his toothbrush. He further noted that he cannot tie his shoelaces or knots, cannot turn pages without difficulty, newspaper ink irritated his skin, he cannot pick up small items such as coins or screws, he cannot hold objects like ropes, he struggles to use tools, and he cannot perform tasks that he used to, like screwing on nozzles or jar lids. He stated that he lacked full movement of his fingers and could not close his fingers over his palm. He noted that he could only drive for short periods of time because it was too painful to hold the steering wheel, and that he avoids writing because holding a pen causes him pain. See December 2020 declaration. In a January 2021 statement in support of claim, the Veteran contended that his tremors should be separately rated under 38 C.F.R. § 4.124a DC 8515 (paralysis of the nerve). He stated that, as the VA previously assigned service connection for tremors, it was the VA examiner’s job to determine the severity of the tremors. He explained that he had tremors for the prior 15 years and they occurred when he tried to use his hands. He also contended that he met the criteria for a 60 percent rating under “DC 7106” because he meets the criteria for the general rating formula for eczema and other disorders of the skin as he has characteristic lesions which effect 40 percent of more of the exposed area and that exposed area refers to face, neck, and hands. He reported that he had outbreaks on his arm, wrists, hands, back, and knees. He asserted that his current rating does not correctly apply the general formula because it accounts for his total body area, not his exposed body area. He also contended that the VA examinations were inadequate regarding his exposed body area because they do not differentiate hands, face, and neck from his entire body. He contended that his current ratings did not account for functional loss or loss of use of his hands, including his inability to make a fist, inability to grasp items or perform fine motor skills, and swilling and daily pain. See January 2021 statement in support of claim. In a February 2021 statement, the Veteran contended that his eczema covered 100 percent of his right wrist, top and bottom, and 100 percent of the top of his right hand, fingers, and thumb. He also contended that his eczema covered 10 percent of his left wrist and 90 percent of the top of his left hand, fingers, and thumb. He stated that this has been the case for many years. He also contended that he had eczema on his face and neck. The Veteran reported that he is unemployable due to his service-connected eczema as he has lost the use of his hands. See January 2021 statement in support of claim. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, the evidence of record indicates that the Veteran’s eczema required systemic therapy throughout the appeal period. 2. The Veteran’s limitation of motion of his bilateral hands is secondary to his service-connected eczema. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent for eczema are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7806. 2. The criteria for entitlement to service connection for limitation of motion of the bilateral hands are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1971 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, this case was remanded by the Board. 1. Eczema The Veteran’s eczema is currently rated as 30 percent disabling pursuant to 38 C.F.R. § 4.118, DC 7806. During the claim period, VA amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of a claim, the Board is to consider both the former and current schedular criteria. Should an increased rating be warranted under the new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Currently, DC 7806 directs VA adjudicators to evaluate dermatitis or eczema under the General Rating Formula for the Skin. Under this formula, a 30 percent rating is assigned when the record demonstrates that one of the following is present: (1) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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 when the record demonstrates that at least one of the following is present: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. See 38 C.F.R. § 4.118. Under this post-amendment formula, “systemic therapy” is defined as “treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin,” and “topical therapy” is defined as “treatment that is administered through the skin.” See 38 C.F.R. § 4.118(a). Comparatively, under the pre-amendment version of DC 7806, a 30 percent rating was warranted where at least one of the following was present: (1) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected; or (2) systemic therapy such as corticosteroids or other immunosuppressive drugs was 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 when either (1) more than 40 percent of the entire body or exposed areas was affected; or (2) constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. See 38 C.F.R. § 4.118 (2018). Unlike the current version of 38 C.F.R. § 4.118, the pre-2018 amendment version of 38 C.F.R. § 4.118 did not contain an explicit definition of “systemic therapy.” Rather, the Court of Appeals for Veterans Claims (Court) held in Johnson v. McDonald that the use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. 27 Vet. App. 497, 505 (2016). 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 DC 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. 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 the topical treatment may be systemic depending on how the topical treatment works (how it affects the body more broadly). Id. Thus, in a given case, the use of a topical corticosteroids could be considered either systemic therapy or topical therapy based on the factual circumstances. A July 2017 VA examination showed constant/near constant use of topical corticosteroids hydrocortisone ointment, betamethasone, and fluocinonide; and that the Veteran’s eczema covered less than five percent of his total body area and less than five percent of exposed area (hands, face, and neck). The examiner noted that the Veteran’s chronic eczema limited his capacity to perform duties that require fine motor control of his hands and fingers or any duties that require work environment with exposure to prolonged heat or high humidity. The October 2017 VA examination showed constant/ near constant use of topical corticosteroid hydrocortisone and less than six weeks of use of fluocinonide; and that the eczema covered less than five percent of his total body area and less than five percent of exposed area (hands, face, and neck). A January 2019 VA skin examination showed constant/near-constant use of topical corticosteroids or other immunosuppressive medications, which was noted to be betamethasone ointment or fluocinonide ointment. The examiner also noted the use of bleach baths less than six weeks, and the use of flurandrenolide tape and hydrocortisone for six weeks or more, but not constant. The examiner determined that the total body area was five to 20 percent and the total exposed area was 20 to 40 percent. He noted that there were no abnormalities seen on the face, but that there was hand involvement which made the total exposed surface area 23.5 percent. The October 2020 VA examination showed constant/near constant treatment with corticosteroids or other immunosuppressive medications noted to be topical fluocinonide or betamethasone. The examiner noted the use of bleach baths less than six weeks, and the use of flurandrenolide tape and hydrocortisone for six weeks or more, but not constant. The examiner also noted that the Veteran used a hydroxyzine pill for itching related to his eczema, which he used constantly or near constantly. The Veteran’s eczema was noted to be five to 20 percent of his total body area and five to 20 percent of his exposed area. The Board finds that the Veteran’s use of topical corticosteroids constitutes systemic therapy as contemplated by the Court in Burton. The evidence shows constant or near constant use of topical corticosteroids. Further, the Board finds the Veteran’s constant to near constant use of hydroxyzine in the form of an oral pill for itching related to his eczema also supports a 60 percent rating as it is systemic therapy. See October 2020 VA examination. Accordingly, a rating of 60 percent rating for eczema is warranted. The Board notes that 60 percent is the maximum schedular rating for eczema. 2. Hand Conditions Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An October 2020 VA examiner determined that the Veteran had limitation of motion of the bilateral hands due to eczema that can be objectively demonstrated. He noted that topical creams and steroids are well-documented to cause breakdown of the skin, thinning of the skin over time, and swelling of the skin. He determined that the finger motion would be limited by the swelling of the hands and therefore the steroid creams could be expected to help the eczema but could reduce the range of motion of the hands due to swelling. He specifically stated the Veteran’s eczema had at least as likely as not caused limited range of motion of the fingers and hands bilaterally. A December 2020 VA examiner attributed 75 percent of the reduction in range of motion of the Veteran’s hand joints to skin thickening/ tightness due to eczema, with the rest due to his non-service connected degenerative changes. As the limitation of motion has been attributed to eczema, service connection for limitation of motion of the bilateral hands is granted as secondary to the Veteran’s service-connected eczema. The Board finds that service connection is not warranted for any other hand conditions. However, in light of the Veteran’s contentions, the Board will address the Veteran’s other hand symptoms. The Board notes that an October 2017 Hand and Finger Disability Benefits Questionnaire (DBQ) indicated that flareups of the right and left hands can be described as painful fissures. His functional impairment was described as weak grip and dropping things. In regard to the Veteran’s hand tremors, the October 2017 VA examiner noted that the Veteran had hand tremors related to eczema. However, he did not provide a rationale in support of this opinion. A May 2018 VA examiner determined that the Veteran had a diagnosis of isometric tremor which was less likely than not due to his service-connected eczema. He determined there was no medical basis to support such a claim. The January 2019 VA examiner also stated that “tremors of eczema” was noted on the 2017 VA examination, but he was uncertain as to why this was as the weight of the literature did not support a diagnosis of tremors as being caused by eczema. The Board finds that the May 2018 and January 2019 VA examiners’ opinions are the most probative evidence of record. The clinicians examined the Veteran, considered the Veteran’s contentions, reviewed the medical records and relevant peer-reviewed medical literature, and provided rationale for their conclusions. The October 2020 VA examiner found that the Veteran’s intermittent numbness of the hands was less likely due to or the result of any skin disorder, including the use of topical or other steroids. His rationale was that the symptoms of his hands sounded most consistent with intermittent compression of a peripheral nerve or nerve root, and that the weight of the literature did not support eczema as causing intermittent numbness of the hands in a nerve/ dermatomal distribution. The October 2020 VA examiner determined that the degenerative changes in the hands, bilaterally, were less likely than not related to eczema or steroid creams. The examiner determined that the degenerative changes in the hands were consistent with his activity as a mailman for decades and his woodworking hobby. The December 2020 VA examiner also stated that the weight of the medical literature did not support eczema or the types of medications he uses for his eczema as causing degenerative arthritis of the hands, and he stated that degenerative arthritis of the hands is a very common condition seen with increasing age. The Board acknowledged the Veteran’s contentions regarding all of his bilateral hand symptoms. However, the Board finds that there is no evidence in the record indicating that the Veteran is qualified to provide a medical diagnosis or opinion. While the Veteran, as a lay person, is competent to provide evidence regarding the symptoms he observed, he is not competent to offer an opinion as to the etiology of his hand symptoms as this matter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In sum, the Board finds that service connection is warranted for limitation of motion of the bilateral hands as there are positive VA opinions in support of that claim. However, service connection is not warranted for any other hand condition. REASONS FOR REMAND When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that he is unemployable due to his service-connected eczema as he has lost the use of his hands. See January 2021 statement in support of claim. May 2018 and January 2019 VA examinations note the Veteran’s employment as “semi-retired from the post office after 36 years.” In light of the aforementioned evidence, the AOJ should request that the Veteran complete an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain more information regarding his current employment status, work history, and education. The matters are REMANDED for the following action: Request that the Veteran complete a VA Form 21-8940. Obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. He should be asked to submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. All actions to obtain the requested information should be documented fully in the claims file. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.