Citation Nr: 21027787 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-08 541 DATE: May 6, 2021 ORDER An initial disability rating in excess of 10 percent from February 19, 2010 to September 4, 2014 for service-connected rosacea is denied. A disability rating of 10 percent rating, but no higher from September 5, 2014 to October 24, 2019 for service-connected rosacea is granted. FINDINGS OF FACT 1. From February 19, 2010 to September 4, 2014 the Veteran's rosacea affected at 5 percent but less than 20 percent of the exposed affected area. 2. It is factually ascertainable from the record that, from September 5, 2014 to October 24, 2019, the Veteran used topical therapy and oral medication to treat his rosacea. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent from February 19, 2010 to September 4, 2014 for a skin disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.118, DC 7806. 2. The criteria for a 10 percent rating, but not higher, from September 4, 2014 to October 24, 2019, for a skin disability has been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 the Board remanded this matter for further development. In an October 2014 rating decision, the RO granted an increase to the Veteran's service-connected rosacea disability from 0 percent disabling to 10 percent, effective February 19, 2010 and a noncompensable evaluation is assigned from September 5, 2014. As this does not constitute a full grant, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). In a May 2020 rating decision, the RO granted an increase to the Veteran's service-connected rosacea from 0 percent disabling to 60 percent, effective October 24, 2019. The represents the highest rating available under 7806. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. An initial disability rating in excess of 10 percent from February 19, 2010 to September 4, 2014 for service-connected rosacea is denied. Legal Criteria Under DC 7806 (dermatitis or eczema) or as a scar/disfigurement under DC 7800 through 7805. See 38 C.F.R. § 4.118. Under DC 7806: a 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See id. Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Claims pending prior to that effective date will be considered under both the old and new schedules, and the schedule most favorable to the Veteran's claim will be applied. For applications filed on or after the effective date, only the new schedule will be applied. Under the new schedule, "systemic therapy" refers to treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118 (a). "Topical therapy" refers to treatment that is administered through the skin. Id. Under the prior October 23, 2008 amended criteria, topical corticosteroids, such as skin creams, can constitute "systemic therapy" under 38 C.F.R. § 4.118 if administered on a large enough scale to affect the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). Factual Background The Veteran received a VA examination in April 2011 for his initial service connection claim. Physical examination revealed that the Veteran's rosacea covered approximately 10 percent of the total exposed area affected and approximately 1 percent of total body surface area affected. There was no indication that his rosacea caused any scarring or disfigurement. Based on the above findings, the Veteran was awarded service connection for rosacea in October 2011 and was assigned an initial 0 percent disability rating under Diagnostic Code 7806, effective February 19, 2010, as his rosacea was shown to cover less than 5 percent of the entire body or less than 5 percent of the exposed affected area. In an August 2012 correspondence, the Veteran filed a notice of disagreement for an increased rating for rosacea. As such, a VA examination was afforded to the Veteran in September 2014, which indicated at the time his rosacea covered less than 5 percent of his total body area and less than 5 percent of exposed area. The examiner indicated the Veteran had no benign or malignant skin neoplasms. The examiner also noted, the Veteran had not been treated with oral or topical medications in the past twelve months for any skin condition. The examiner found the Veteran had facial flushing with telangiectasia along the cheeks and nasolabial folds. In October 2014 the RO increased the 0 percent rating to 10 percent effective date February 19, 2010 the date of claim for his condition finding at least 5 percent, but less than 20 percent of the exposed areas affected and less than 5 percent of the entire body affected. Based on the examination findings in September 2014, the RO assigned a noncompensable (zero percent) effective September 5, 2014 on a finding that the severity of his rosacea had decreased under the provisions of Diagnostic Code 7806. 38 C.F.R. § 4.118. Analysis The Board finds that the Veteran is not entitled to an increase rating from February 19, 2010 to September 4, 2014 under DC 7806 because at no point did his skin disability affect 20 to 40 percent of his body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. Next, because the Veteran's claim was pending prior to August 13, 2018, the Board considered both the October 23 and August 2018 amended rating schedules determine whether the criteria are met for systemic therapy with respect to corticosteroids or other immunosuppressive drugs. The Board notes the Veteran reported use of oral medication (Doxycycline) for the last twelve months in his VA Form 9, but he did not indicate the use of corticosteroids. The Board notes that Doxycycline belongs to the class of medicines known as tetracycline antibiotics. See https://www.mayoclinic.org/drugs-supplements/doxycycline-oral-route/description/drg-20068229. Accordingly, the evidence indicates the Veteran did not need or use corticosteroids or other immunosuppressive drugs (topical or systemic) constantly or near constantly during the appeal period. Lastly, the Veteran is not entitled to a compensable rating under DC 7800 through 7805 because there are no reports or medical evidence of scarring. Thus, the preponderance of the evidence is against a finding that his disability arises to impairment contemplated by a higher rating from February 19, 2010 to September 4, 2014. Consequently, an initial rating in excess of 10 percent is denied. 2. A disability rating of 10 percent rating, but no higher from September 5, 2014 to October 24, 2019 for service-connected rosacea Factual Background The Veteran's service-connected rosacea is rated as noncompensable from September 5, 2014 to October 24, 2019. He reports his rosacea condition convers his entire face (cheeks, forehead, nose, eyelids) as well as his neck (side and back) and some of his scalp. He contends his condition affects at least 10 percent of his body possibly over 20 percent of the exposed area. See March 2015 Form 9. The September 2014 VA examination indicated at the time his rosacea covered less than 5 percent of his total body area and less than 5 percent of exposed area. The examiner indicated the Veteran had no benign or malignant skin neoplasms. The examiner also noted, the Veteran had not been treated with oral or topical medications in the past twelve months for any skin condition. The examiner found the Veteran had facial flushing with telangiectasia along the cheeks and nasolabial folds. In his January 2019 Appellate Brief, the Veteran stated he submitted photographs in support of his contention. He argues that, had the photographs been scanned into the c-file properly, it would have presented a clearer picture of his condition. Further, in the March 2021 appellate brief, the Veteran argued that his rosacea was much worse than reported by the examiner and covered a majority of his face. He stated the examiner did not include any of his statements and no photographs were taken at the time. Pharmacy records submitted by the Veteran document he was prescribed topical creams and oral medications. For example, a November 2014 prescription record documents the Veteran's rosacea was assessed as deteriorated. It was noted the Veteran was prescribed topical and oral medication. Additionally, the prescription record noted the Veteran had bumps on his left foot that occasionally burned. A November 2015 private treatment record notes the Veteran was seen for a red bump on his nose. A subsequent February 2016 private treatment record documented the Veteran was seen for skin lesion on the right of his nose. The clinician indicated the lesion had enlarged and was irregular, irritated and mild in severity. A biopsy using the shave method was performed. An April 2016 private treatment record indicated the pathology of the legion showed basal cell carcinoma. The Veteran was referred for a Mohs consultation. A June 2016 private treatment record noted the Veteran had a single non-melanoma skin cancer on the right nose. He clinician noted the Veteran had bright cherry-red papules distributed on the arm and trunk. Analysis The Board assigns the September 2014 opinion low probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The 2014 medical opinion did not address the Veteran's lay statements, including the Veteran's reported use of topical medication to treat his rosacea. Additionally, the 2011 examination documented 10 percent of the exposed areas affected; however, the 2014 examiner noted less than 5 percent of the exposed area affected. Notably, unlike the 2011 examiner the 2014 examiner did not indicate photographs were taken during the examination. Moreover, the 2014 examiner did not a provide a medical rationale regarding why there was a difference in total exposed affected area between the two examinations. Therefore, the Veteran meets the criteria disability rating increase to 10 percent under DC 7906 criteria for because it is factually ascertainable that at least 5 percent, but less than 20 percent of the exposed area was affected from September 5, 2014 to October 24, 2019. Conversely, the Veteran is not entitled to a 30 percent rating because at no point during the appeal period has the skin disability affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. Next, because the Veteran's claim was pending prior to August 13, 2018, the Board considered both the October 23, 2008 and August 13, 2018 amended rating schedules to determine whether the criteria are met for systemic therapy with respect to corticosteroids or other immunosuppressive drugs. The Board notes the evidence of record documents use of topical creams and oral antibiotics during the appeal period. The Board acknowledges that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total area affected. However, Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). 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." Id. at 1355. Regardless of whether the Veteran applied a topical cream to his rosacea for durations that would warrant higher disability ratings under Diagnostic Code 7806, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only area affected by his rosacea. Thus, at no time during the period on appeal has the Veteran's topical treatment for his rosacea constituted "systemic therapy" for the purposes of Diagnostic Code 7806. The Board has also considered whether a higher or separate rating is warranted under any other diagnostic code. The evidence of record does not suggest that the Veteran's rosacea has ever caused disfigurement of the head, face, or neck that would warrant a higher rating under Diagnostic Code 7800, nor does it suggest that the Veteran's rosacea has ever resulted in scarring that would warrant a higher rating under Diagnostic Codes 7801-7805. 38 C.F.R. § 4.118. Thus, the preponderance of the evidence is against a finding that his disability arises to an impairment contemplated by a 30 percent rating. Consequently, rating of 10 percent, but no higher, from September 4, 2014 to October 24, 2019 is warranted. Victoria Moshiashwili Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.