Citation Nr: 21026800 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-37 999 DATE: May 4, 2021 ORDER The reduction of the evaluation for seborrhea from 60 percent to 10 percent effective June 1, 2018, was improper; and the 60 percent rating is restored. FINDING OF FACT The August 2016 rating decision grating a 60 percent rating did not contain CUE, and improvement in the disability was not shown. CONCLUSION OF LAW The reduction of the evaluation for seborrhea from 60 percent to 10 percent effective June 1, 2018, was improper; and restoration of the 60 percent rating warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2013 to February 2013, and December 2014 to August 2015. This matter comes before the Board of Veterans' Appeals (Board) from a March 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in April 2021. VA systems recognize the Massachusetts Department of Veterans Services as the Veteran's representative, and the Board has previously notified the state representative of this appeal. At the time of the hearing, she was not assisted by a representative but did not revoke representation. As this is a grant of benefits, there is no prejudice in moving forward and the Board will recognize the change in representation. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The reduction of the evaluation for seborrhea from 60 percent to 10 percent effective June 1, 2018, was improper; and the 60 percent rating is restored. In a March 2018 rating decision, the Agency of Original Jurisdiction (AOJ) found CUE in the August 2016 rating decision, and therefore reduced her rating from 60 percent to 10 percent, effective June 1, 2018, the first day of the month after her due process rights regarding the reduction expired. The Veteran contends that the August 2016 rating decision did not contain CUE in assigning a 60 percent rating for her seborrhea disability as she meets the 60 percent rating criteria of the need for systemic therapy. After reviewing the evidence of record, the Board agrees with the Veteran and finds that the August 2016 rating decision did not contain CUE. As such, the Board restores the Veteran's 60 percent rating for seborrhea, effective August 24, 2015. The Board notes that in a February 2020 rating decision the AOJ purported to reduce the Veteran's rating to a noncompensable rating, effective February 6, 2020, pursuant to the Veteran's claim for an increased rating filed in December 2019. However, as the Veteran filed the increased rating claim after the instant appeal was certified to the Board, the AOJ did not have jurisdiction to adjudicate the increased rating claim. As the Board is restoring the Veteran's 60 percent rating the AOJ's subsequent reduction to a noncompensable rating is also voided. The Board first notes that the instant case requires consideration of two separate standards: (1) CUE and (2) reduction of compensation benefits. It is quite possible that the former rating was overly generous and that the evidence at the time did not justify the rating. VA may not, however, reduce the rating simply because the Veteran actually does not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless CUE is shown in the determination to assign the disability rating. For VA to retroactively adjust a disability rating based upon an earlier claim that became final and binding, VA must collaterally attack the decision and show that there was CUE in the manner which the rating was assigned. Flash v. Brown, 8 Vet. App. 332, 340 (1995). If CUE was not present in the August 2016 rating decision which assigned a 60 percent rating for seborrhea, then there is no basis for the March 2018 reduction to 10 percent. If CUE was present in the August 2016 rating decision, the proper procedures governing reduction must still be observed as the remedy used to correct a prior rating error is reduction. See 38 C.F.R. § 3.105. 38 C.F.R. § 3.105(a)(1)(i) defines CUE as "the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." It is a "very specific and rare kind of error[,]" and "[i]f it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." Id. In determining whether CUE was committed, VA must evaluate the decision pursuant to the statutory and regulatory provisions that existed at the time the decision occurred. Id. Disagreements as to how VA evaluated the facts before it and contentions regarding VA not fulfilling the duty to assist are not CUE. See Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Regarding the standards for reduction of a disability rating, a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. Prior to reducing a veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). The Veteran's seborrhea is rated under Diagnostic Code 7806, for dermatitis or eczema. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, the rating reduction was made in a March 2018 rating decision, and made effective in June 2018, before the new rating criteria. Thus, the old rating criteria apply to the instant appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to August 13, 2018, under DC 7806, 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. The AOJ found CUE in the August 2016 rating decision because her treatment required topical therapy but not the systemic therapy required for a 30 percent or higher rating. However, topical corticosteroids may constitute systemic therapy. In Johnson v. Shulkin, the Federal Circuit explain 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." 862 F.3d 1351 (2017). Although 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, this possibility did not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Accordingly, while Johnson v. Shulkin does not provide a bright line rule that all topical therapies are systemic therapies, it does provide that topical therapies may constitute systemic therapy on a case by case basis. Here, the Veteran reports she was prescribed an oral steroid in December 2016 for her skin condition. See August 2018 VA Form 9. Additionally, VA treatment records show various prescription creams and lotions for her skin conditions, to include ammonium lactate cream, clotrimazole cream, triamcinolone acetonide lotion, ketoconazole cream and shampoo, pimecrolimus cream, salicylic acid shampoo, and ear drops to prevent inflammation and swelling. See, e.g., Medical Treatment Record received in August 2018; January, July, and December 2019 VA treatment records. These creams are used constantly or nearly constantly. See July 2016 VA examination. Thus, although possibly generous, the Board cannot find that the grant of 60 percent was the product of CUE. This was a weighing of the evidence question and not undebatable as to whether the Veteran's various continuous medications constitute systemic therapy. Thus, it is not undebatable that the criteria are not met and there was no CUE in the August 2016 rating decision granting 60 percent. Further, the evidence does not reflect any improvement in her condition. Throughout the appellate period the Veteran has been prescribed various medications to control her skin condition with continued reports of rash. Indeed, the February 2020 VA examination indicated her condition was stable. Thus, as it is not undebatable that the criteria are not met, and improvement has not been shown, the Board restores the 60 percent rating effective August 24, 2015. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.