Citation Nr: 21026417 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-43 553 DATE: May 3, 2021 ORDER An initial disability rating of 60 percent for hidradenitis suppurativa with rosacea (skin disorder), for the entire initial rating period from December 19, 2012, is granted. Recognition of D.C. as the dependent child of the Veteran based on permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDINGS OF FACT 1. The service-connected skin disorder required the use of systemic therapy on a constant or near constant basis during the entirety of the rating period from December 19, 2012. 2. D.C., the Veteran's son, was permanently incapable of self-support prior to attaining the age of 18. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 60 percent for a skin disorder are met for the entire rating period from December 19, 2012. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.118, Diagnostic Code 7899-7806 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for recognition of D.C. as the dependent child of the Veteran are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.4, 3.57, 3.315, 3.356. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to January 1977, and from July 1978 to September 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2020, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. 1. A Higher Initial Rating for the Service-Connected Skin Disorder of 60 Percent is Granted. In the June 2014 decision on appeal, VA assigned an initial noncompensable rating, effective December 19, 2012, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7899-7806, for the service-connected skin disorder. Unlisted diseases, injuries, or residual conditions are rated by analogy with the first two digits selected from that part of the rating schedule that most closely identifies the part or system of the body involved; the last two digits will be "99" for all unlisted conditions. Accordingly, in this case 7899 refers to disabilities of skin, while 7806 refers to the diagnostic code for dermatitis or eczema. Diagnostic Code 7806 directs VA to evaluate the disability at issue under the General Rating Formula for the Skin (general rating formula). The Veteran contends that a higher initial disability rating for the skin disorder is warranted, contending that the treatment of the skin disorder was "systemic therapy." He also contends that, during flareups, the skin disorder covers a larger body percentage than was indicated on VA examination. Relevant to the instant case, VA amended the rating criteria for skin disabilities, 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 claim period, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under 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). Under the new, amended version of the rating criteria, a noncompensable rating is warranted where no more than topical therapy is required over a 12-month period and there are characteristic lesions involving less than 5 percent of the entire body or less than 5 percent of exposed areas. A 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving 5 to 20 percent of the entire body or 5 to 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 warranted where at least one of the following is present: characteristic lesions involving 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. Lastly, a 60 percent rating is warranted for 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2021). Additionally, a note preceding the amended version of 38 C.F.R. § 4.118 provides that, for the purposes of rating skin disabilities, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." Comparatively, under the pre-amendment version of the general rating formula, a noncompensable rating was warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas was affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating was warranted when at least one of the following was present: 5 to 20 percent of the entire body or 5 to 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 warranted where at least one of the following was present: 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 when either more than 40 percent of the entire body or exposed areas was affected, or; the skin condition required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. See 38 C.F.R. § 4.118 (2017). Under the pre-amendment version of 38 C.F.R. § 4.118, the U.S. 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 Diagnostic Code 7806. 27 Vet. App. 497, 505 (2016). Thereafter, in Jonson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court 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). In Burton, the 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. Turning to the evidence of record, the Board first notes that during the rating period the Veteran was provided one relevant VA examination pertaining to the service-connected skin disorder. Specifically, in May 2014, a VA skin diseases examination shows diagnoses of three skin disorders: hidradenitis suppurativa, acne, and rosacea. The VA examiner noted that the Veteran had ongoing, active problems with chronic rosacea and acne of the face. The VA examiner also indicated that, while the Veteran received treatment in the past for hidradenitis suppurativaincluding the use of oral antibiotics and incision and drainage of skin abscessesthis particular disorder was not currently active at the time of the examination. Beyond the May 2014 VA skin diseases examination report, VA received treatment records from private medical providers pertaining to the nature and severity of the service-connected skin disorder during the rating period from December 19, 2012. Firstly, in June 2014, the Veteran was seen by a provider at Selma Medical Associates who assessed hidradenitis, and prescribed doxycycline 100 mgan oral antibioticto be taken once per day. The provider noted that, previously, the Veteran's hidradenitis was present in the inguinal region and had responded to a course of prednisone, a corticosteroid. A follow-up visit with Selma Medical Associates in August 2014 resulted in continued use of doxycycline. About two months later, in October 2014, the Veteran was again seen at Selma Medical Associates where he was again prescribed a course of prednisone for the hidradenitis. Specifically, the Veteran was directed to take two 10 mg tablets per day for one week and then one tablet per day thereafter. Subsequently, in November 2014, the Veteran was seen by specialist Dr. Flax at Dermatology Associates, Inc. regarding the hidradenitis suppurativa. The Veteran indicated that he had multiple lesions located on his groin and that this particular skin disorder had been present for many years. Dr. Flax noted that, in the past, the Veteran had tried multiple treatments to control his hidradenitis, including: Cleocin, triamcinolone, doxycycline, prednisone, minocycline, tetracycline, erythromycin, and incision and drainage. After examining the Veteran, Dr. Flax prescribed Bactrim and continued the Veteran on a course of prednisone. In addition to these private treatment records, the Board notes that the Veteran and his spouse provided testimony regarding the nature and severity of the Veteran's skin disorder during the rating period. Specifically, during the November 2020 Board hearing the Veteran's spouse testified that she was a retired registered nurse with other 40 years of experience. Hearing Tr. at 2-3. She then testified that the Veteran's hidradenitis suppurativa impacted the groin, thigh, genitals, buttocks, and underarm areas. Id. at 3-4. The Veteran's spouse explained that the Veteran was taking several antibiotics continuously and, because of her experience as a nurse, she recently began giving him injections of the medication Humira. Id. at 4. The Veteran's spouse testified that the Veteran began taking daily corticosteroids in June 2014 and, prior to that time, he was taking periodic immunosuppressants in combination with Kenalog injections and topical triamcinolone creams for the hidradenitis. Id. at 6-7. From this evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the criteria for an initial 60 percent rating are met under the pre-amendment version of Diagnostic Code 7806 because the skin disorder required constant or near-constant systemic therapy for the entire rating period from December 19, 2012. A 60 percent rating is the maximum schedular rating available under the pre-amendment version of Diagnostic Code 7806. See 38 C.F.R. § 4.118 (2017). In concluding that the Veteran is entitled to an initial 60 percent rating, the Board finds that the Veteran has been using corticosteroidsi.e. prednisoneat a near-constant frequency since June 2014. The use of such corticosteroids at a near-constant frequency entitles meets the criteria for an initial 60 percent rating under the pre-amendment version of Diagnostic Code 7806. See 38 C.F.R. § 4.118 (2017). Additionally, for the time period prior to June 2014, the Board notes that the Veteran was using antibiotic prescription medicationswhich had immunosuppressive qualitieson a constant basis. The Veteran's spouse testified that he took periodic immunosuppressants prior to the documented prescription of prednisone. Accordingly, the Board finds that this use of constant antibiotics and other immunosuppressants also qualifies as systemic therapy for the purpose of applying the pre-amendment version of Diagnostic Code 7806, warranting the assignment of an initial 60 percent rating prior to June 2014. Id. In reaching this conclusion, the Board finds the Veteran's spouse's testimony regarding the longevity and continuity of the Veteran's treatments to be credible as it was consistent with the records of private medical treatment associated with the claims file. See, e.g., November 2014 Dr. Flax Treatment Record. 2. D.C. as Recognized as a "Helpless Child" Dependent. Regarding the other issue on appeal, the Board notes that, if a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent. See 38 C.F.R. § 3.4(b). In this case, the Veteran has been in receipt of a disability rating of at least 30 percent since December 2012. As such, the Board finds the initial 30 percent threshold established in 38 C.F.R. § 3.4(b) to be satisfied. In a VA Form 21-686c, Declaration of Status of Dependents, received by VA in December 2013, the Veteran indicated that he had one biological child, D.C., who was seriously disabled. The record indicates that D.C. was born in July 1989 and, therefore, turned 18 years old in July 2007. A child of a veteran generally does not qualify as a dependent for VA purposes once he or she attains 18 years of age. However, an adult child of a veteran may be considered a "child" for dependency purposes if he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18 ("helpless child") or (2) is between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. D.C. is currently not married, and the Veteran is contending that D.C. should be added to his award as a helpless child. 38 C.F.R. § 3.356 provides several factors to consider when determining whether a child under the age of 18 permanently was incapable of self-support. Those factors are as follows: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. The Court held that, in "helpless child" cases, the focus must be on the claimed dependent's condition at the time of his or her 18th birthday. See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the child 's condition subsequent to his or her 18th birthday is not for consideration. If a finding is made that a child was permanently incapable of self-support as of his or her 18th birthday, however, then evidence of the child's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the child capable of self-support. If the child is shown to be capable of self-support at age 18, VA is required to proceed no further. After reviewing the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether D.C. was incapable of supporting himself prior to July 2007 such that he qualifies as a helpless child for dependency purposes. In support of this determination, the Board first notes that, prior to his 18th birthday, D.C. was diagnosed with several psychiatric and physical disabilities. The most comprehensive summary of D.C.'s extensive medical history was provided by private child and adolescent psychiatrist Dr. Trefzger in April 2004, who indicated that she had been treating D.C. since December 1998. In her April 2004 report, Dr. Trefzger first indicated that D.C. had received the following diagnoses since December 1998: attention deficit hyperactivity disorder (ADHD)-inattentive type; pervasive developmental disorder (PDD)-autistic spectrum disorder, moderate functioning; Tourette's disorder; chronic motor tics movement disorder; obsessive-compulsive personality disorder; major clinical depressive disorder with suicidal ideations; severe anxiety disorder; and severe social anxiety disorder. Dr. Trefzger then explained that symptoms attributable to these diagnosed disabilities resulted in D.C. having diminished concentration, retention, recall, and productivity of such an extent that D.C. often experienced dramatic "shutdowns" or "meltdowns" of a long-lasting nature. Dr. Trefzger elaborated that D.C. often misinterpreted communications and perceived any corrections as confrontational, causing regressions and irritability of such an extent that D.C. completely isolated himself. Dr. Trefzger assessed that retaining new skills was too difficult and overwhelming for D.C. and that his need to isolate himself frequently, to have additional time to complete tasks, to be dependent on others, and to be assisted to follow instructions would not permit him to be successful in a post-secondary or occupational environment following his completion of high school. Separate from this April 2004 report from Dr. Trefzger, the Board notes that, in August 2008 about one year after D.C.'s 18th birthdayprivate physician Dr. Long completed a medication certification for D.C. for the Department of Homeland Security. Dr. Long certified that D.C. was incapable of self-support due to a physical and mental disorder and that D.C.'s disabilities began around age eight, but likely existed at birth. Dr. Long assessed that D.C.'s disabilities were permanent in nature. In addition to this August 2008 certification, the Board notes that, during the claim period, the Veteran submitted copies of documents from Frederick County Public Schools pertaining to D.C.'s progress and an Individualized Education Program (IEP) up through D.C.'s senior year of high school. The Board finds these documents to be highly probative as they describe the numerous impacts that D.C.'s disabilities (1) had on his ability to effectively be a student in a public school system prior to age 18, and (2) would limit his capacity for self-support after his 18th birthday. Specifically, a June 2006 IEP, created when D.C. was almost 17 years old, noted that D.C. continued to carry diagnoses of ADHD; PDD-autistic spectrum disorder, Tourette's syndrome; chronic motor tics movement disorder; obsessive-compulsive personality disorder; severe depressive disorder with suicidal ideations; severe anxiety disorder; and severe social anxiety disorder. The IEP then included remarks as to how these diagnosed conditions impacted D.C.'s functioning in several categories. Regarding the "Language" category, the IEP noted that D.C. struggled with the pace of his English class and that his emotional issues impacted his ability to write fluently, focus on subjects, and understand assignments. It was then noted that D.C. was easily frustrated when asked to make a choice of multiple topics and that he would not ask for help, leading to more noticeably distressed behaviors. The IEP noted that D.C. struggled to work independently and often turned in assignments late due to forgetfulness or feelings of anxiety toward interacting with his teacher. These same concerns were echoed in remarks pertaining to D.C.'s performance in mathematics, science, and social studies. Indeed, regarding mathematics, the June 2006 IEP noted that D.C. would not remain focused unless he was given specific one-on-one instruction. Apart from his performance in school subject areas, the June 2006 IEP also discussed D.C.'s communication abilities, social and behavioral skills, and his future transition from environment outside of school. Regarding communication abilities, the IEP noted that D.C.'s anxiety and coping skills affected his ability to communicate his needs effectively. The IEP elaborated that D.C. relied heavily upon his parents and teachers to anticipate and communicate his needs, and that D.C. often appeared uncomfortable speaking with both adults and peers. Lastly, the IEP indicated that D.C. often perceived any questioning by adults as confrontational. Regarding D.C.'s social and behavioral skills, the IEP noted that D.C.'s significant anxiety interfered with his ability to focus and remain organized. The IEP documented that often D.C. could be in direct conversation with a teacher but then not recall what was discussed. The IEP then indicated that, when overstressed, D.C. would run and hide or "shutdown" to regroup which could be extremely time-consuming. Lastly, the IEP stated that D.C. was not social and had great difficulty accurately perceiving situations or interactions. Regarding D.C.'s future transition out of the school environment, the IEP noted that D.C. relied heavily upon his parents, was fearful of failure, had great difficulty attempting anything outside of what he already knew or understood, and took very little initiative in planning for any type of post-graduation activities. The IEP concluded that post-secondary school or employment was not a realistic or attainable expectation given that D.C.'s disabilities prevented him from engaging in normal dialogue with others, meeting daily living needs, and functioning with proper interactions. Apart from this documentation from Frederick County Public Schools, the Board notes that, during the November 2020 hearing, the Veteran's spouse testified that, since his graduation from high school, D.C. had become homebound. See Hearing Tr. at 23-24. She elaborated that D.C. had never secured a job and had not obtained his driver's license. Id. She concluded that he still was fearful in situations he could not manage, that he did not socialize with others, and that he could not process multiple stimuli at one time. Id. 23-25. (Continued on the next page) In summation, the evidence of record demonstrates that D.C. was diagnosed with several disabilities prior to his 18th birthday which caused significant academic challenges, a reduced likelihood of achieving employment, and restrained the ability to function independently. The record also indicates that these challenges continued after D.C.'s 18th birthday in July 2007. Resolving reasonable doubt in the Veteran's favor, the Board finds that D.C. was permanently incapable of self-support by reason of mental defect before reaching age 18. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.