Citation Nr: 21023240 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-40 309 DATE: April 20, 2021 ORDER An effective date of March 25, 2015, but no earlier, for a 60 percent rating, but no higher, for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen is granted. REMANDED Entitlement to an effective date earlier than March 25, 2015, for a 60 percent rating for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen, to include whether there was clear and unmistakable error (CUE) in March 1992, April 2000, and February 2002 rating decisions that denied increased ratings, is remanded. FINDING OF FACT Although the Veteran’s service-connected eczematous dermatitis waxed and waned in severity, characteristic lesions have been shown to involve more than 40 percent of the entire body throughout the appeal period. CONCLUSION OF LAW The criteria for an effective date of March 25, 2015, but no earlier, for a 60 percent rating, but no higher, for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1983 to January 1992. At a July 2020 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Veteran has indicated that his March 2015 claim for an increased rating for his skin disability included not only a claim for a higher evaluation but also a claim that CUE occurred in prior rating decisions that awarded 10 percent and 30 percent ratings for the disability. The Agency of Original Jurisdiction (AOJ) has not yet addressed the CUE claim in the first instance. As such, the Board takes jurisdiction of the claim for the limited purpose of remanding the issue for adjudication. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Service connection for eczematous dermatitis was granted in a March 1992 rating decision, effective January 22, 1992, at 10 percent disabling under 38 C.F.R. § 4.118, DC 7806. The rating was subsequently increased to 30 percent. The Veteran submitted a claim for increase on March 25, 2015. The rating was increased to 60 percent, effective April 2, 2019, in a May 2019 rating decision. Therefore, the Board will consider the severity of the Veteran’s skin disability from March 25, 2015, as well as whether there was a factually ascertainable increase in severity within the year preceding his increased rating claim. See 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. Here, the Veteran submitted his claim for increase in March 2015. As such, the pre-amended criteria will be considered throughout the entire appeal period and the amended criteria will be considered from August 13, 2018. Prior to August 13, 2018, under DC 7806, 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. “Corticosteroids or other immunosuppressive drugs” refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. For claims filed prior to August 13, 2018, the Court held that compensation is available for all systemic therapies that are “like or similar to corticosteroids or other immunosuppressive drugs.” Warren v. McDonald, 28 Vet. App. 194, 197-99 (2016). A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of “systemic therapy.” Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). A systemic 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, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. 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 for 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. Additionally, 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). The Board notes that the Veteran has a diagnosis of mycosis fungoides for which he is separately service connected. The Board will consider only the affected area and treatment for eczematous dermatitis. Turning to the relevant evidence of record, a July 2014 VA treatment record reflected a history of eczema and an ongoing prescription for Triamcinolone Acetonide cream (TAC) 0.1%. However, at that time, he denied any active complaints. The Veteran underwent a VA examination in April 2015. The examiner observed large, scaly, and hyperpigmented macules scattered on the Veteran’s chest, abdomen, thighs, and arms. The total affected and exposed body area was 20 to 40 percent. The examiner indicated that the only current treatment was TAC, used for 6 weeks or more but not constantly in the past 12-month period. A September 2015 dermatology consultation reflected the Veteran’s ongoing prescription of TAC for dermatitis. He was diagnosed with mycosis fungoides in October 2015 and phototherapy was prescribed for that condition. In his October 2015 Notice of Disagreement, the Veteran contended that his condition had worsened to the point that it affected his entire body. A November 2015 treatment record noted that the Veteran had a history of eczema involving over 50 percent of his body. In December 2015, Clobetasol 0.05% ointment was prescribed for both atopic dermatitis and mycosis fungoides. Another VA examination was conducted in January 2016. The examiner indicated that current treatment for the Veteran’s eczema included systemic corticosteroids or immunosuppressive medications of moisturizing cream, Tolnaftate 1% cream and TCA 0.1% used constantly/near-constantly in the past 12 months and a topical corticosteroid of Clobetasol 0.05% cream used constantly/near-constantly in the past 12 months. The examiner observed that the Veteran’s total body area affected by eczema was greater than 60 percent and exposed area was 5 to 20 percent over the upper and lower extremities, abdomen, and trunk. The Veteran underwent VA examinations in February 2016 and June 2017. The examiners indicated that the Veteran was treated with Clobetasol topical steroids for his mycosis fungoides only constantly/near constantly. The examiners noted that none of the Veteran’s total body or exposed area was affected by eczema. In the Veteran’s July 2017 substantive appeal, he stated that he had had over half of his body affected by eczema since serving in the military and that he had used TAC for over 40 years. March 2018, July 2018, and October 2018 treatment records reflected that the Veteran’s atopic dermatitis was currently controlled. In January 2019, it was noted that he had moderate pruritis associated with atopic dermatitis and mycosis fungoides. Another VA examination was conducted in April 2019. The examiner indicated that the Veteran used Lubriderm lotion constantly/near-constantly for his atopic dermatitis. The examiner observed more than 40 percent of the Veteran’s total body area and 5 to 20 percent of his exposed area was affected by dermatitis. Atopic dermatitis resulted in dry, pruritic skin to the anterior and posterior neck, arms, shoulders, lower posterior trunk and lower abdomen, and bilateral thighs. In a July 2020 statement, the Veteran’s wife reported that during the 33 years they had lived together, the Veteran had extreme eczema which required consistent use of medication over half of his body. At the July 2020 hearing, the Veteran testified that his eczematous dermatitis had covered 50 percent of his body since his military service. He described current treatment of corticosteroid topical creams and phototherapy. An effective date of March 25, 2015, but no earlier, for a 60 percent rating, but no more, for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen is granted. It is apparent from the record that the Veteran’s eczematous dermatitis had periods of worsening and improvement over the appeal period. Despite the waxing and waning of the condition, a November 2015 record reflected a history of more than 50 percent of total body area affected by the condition and the January 2016 VA examination demonstrated 60 percent of total body area affected. As such, the Board finds that a 60 percent rating under both the pre-amended and amended criteria of 38 C.F.R. § 4.118, DC 7806, is warranted throughout the entire appeal period based on the area of the body affected. An effective date earlier than the date of claim is not warranted, however. There is no evidence to suggest a factually ascertainable increase in disability during the one-year look-back period. See 38 C.F.R. § 3.400(o)(2). Further, a rating in excess of 60 percent is not warranted throughout the entire appeal period. A 60 percent evaluation is the highest schedular rating available under DC 7806. As eczematous dermatitis is most appropriately rated under DC 7806, rating the condition under an alternative diagnostic code is not merited. The manifestations of the Veteran’s disability are contemplated by the DC 7806 criteria. As such, the Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule. Accordingly, a rating of 60 percent, but no more, is warranted from March 25, 2015, but no earlier, for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen. REASONS FOR REMAND Entitlement to an effective date earlier than March 25, 2015, for a 60 percent rating for eczematous dermatitis of the upper arms, shoulders, back, chest, and abdomen, to include whether there was CUE in March 1992, April 2000, and February 2002 rating decisions that denied increased ratings is remanded. As noted above, the Veteran has indicated that his claim for increase included a claim based on CUE in prior rating decisions evaluating his skin disability. A March 1992 decision granted service connection and awarded a 10 percent rating under 38 C.F.R. § 4.118, DC 7806. An April 2000 decision increased the rating to 30 percent, effective May 21, 1999. A February 2002 decision continued the 30 percent rating. At the July 2020 hearing, the Veteran clarified his contention that CUE occurred in the application of then-current criteria of 38 C.F.R. § 4.118 to his skin disability. The AOJ has not addressed this claim in the first instance. As such, remand is needed for adjudication of the claim. (Continued on the next page)   The matters are REMANDED for the following action: Adjudicate the Veteran’s claim that CUE occurred in the application of 38 C.F.R. § 4.118 to the evaluation of his service-connected eczematous dermatitis in the March 1992, April 2000, and February 2002 rating decisions. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.