Citation Nr: 21028788 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-18 517 DATE: May 12, 2021 ORDER An initial compensable rating for atopic dermatitis is denied. FINDING OF FACT For the entire appeal period, the Veteran's atopic dermatitis affects less than five percent of his total body or exposed areas, is not treated with a systemic therapy, and does not result in disfigurement of the head, face or neck. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Codes (DCs) 7800, 7899-7806 (2017); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DCs 7800, 7899-7806 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1987 to June 1987 and from January 2009 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2021 decision, the Board, in pertinent part, remanded this matter for additional development. 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 appellant 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to an initial compensable rating for dermatitis. The Veteran seeks a compensable initial rating for his service-connected atopic dermatitis. He asserts that his symptomatology warrants a higher disability rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial 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, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran's is in receipt of a noncompensable initial rating for atopic dermatitis pursuant to DC 7899-7806, for dermatitis or eczema. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the diagnostic code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. For example, DC 7899 is used to identify unlisted conditions of the skin. The criteria for the evaluation of this disability changed during the pendency of this appeal. VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added the General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended DCs 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Accordingly, there are essentially two sets of criteria, the earlier criteria and the current criteria, applicable to the evaluation of the Veteran's skin disability. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise, and thus may not apply the current rating criteria prior to its August 13, 2018 effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Super Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran's skin disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would afford the highest rating. Under the regulations in effect prior to August 13, 2018, DC 7806 provided that a noncompensable disability rating is assigned where there is involvement of less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy required for treatment during the past 12-month period. A 10 percent disability rating is assigned where there is involvement of at least five percent, but less than 20 percent, of the entire body, or at least five 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 disability rating is assigned for involvement of 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 disability rating is assigned for involvement of 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. A disability under DC 7806 may also be rated as disfigurement of the head, face, or neck (DC 7800), or scars (DCs 7801-7805) depending on the predominant disability. However, there is no scarring associated with the Veteran's skin condition; therefore DCs 7801-7805 do not apply. In Johnson v. Shulkin, 862 F.3d 1351 (2017), the Federal Circuit interpreted the former version of DC 7806 and held that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to 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.'" Id. at 1355. 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 does not mean that all applications of topical corticosteroids amount to systemic therapy. DC 7800 provides that a 10 percent rating is assigned for disfigurement of the head, face or neck when there is one characteristic of disfigurement. A 30 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. Note (1) indicates that the 8 characteristics of disfigurement for purposes of evaluation under DC 7800 are: A scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; the surface contour of a scar is elevated or depressed on palpation; a scar adherent to underlying tissue; hypo-or hyper-pigmented scarring in an area exceeding six square inches (39 sq. cm.); abnormal skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. Under the new regulations, effective August 13, 2018, DC 7806 will be rated under the General Rating Formula for Skin (General Rating Formula). 38 C.F.R. § 4.118. Under the General Rating Formula, 0 percent rating requires characteristic lesions involving 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 last 12-month period. A 10 percent rating is assigned where there is characteristic lesions involving 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks over the past 12-month period. A 30 percent rating requires 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 six weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating requires 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. 38 C.F.R. § 4.118. Effective August 13, 2018, 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. 38 C.F.R. § 4.118(a). Specifically, the Board must address whether the use of the topical corticosteroids was either systemic or topical therapy as contemplated by DC 7806. Turning to the evidence, in a December 2011 Gulf War Protocol Examination, the Veteran reported a "skin eruption presenting with round form, elevated borders, red color and itching" on his face and chest. Upon examination, the physician noted "sharply demarcated irregularly shaped papules and plaques at back or right ear lobe." The Veteran was diagnosed with atopic dermatitis. The Veteran was afforded a VA examination in August 2014. The Veteran reported rashes on his face and chest. According to the examination report, the Veteran did not have scarring or disfigurement of the head, face, or neck. He also did not have any benign or malignant neoplasms or systemic manifestations. He used topical medication for his atopic dermatitis for less than 6 weeks. The examiner reported that his total or exposed body area was not affected. The Veteran was afforded a VA examination in February 2021. He reported initial onset of his dermatitis while stationed in Iraq in 2009 that localizes in his face and chest. He avoids the sun and uses a medicated cream daily. He reportedly uses corticosteroids or other immunosuppressive medications, consisting of a topical ointment, on a constant/near constant basis. His atopic dermatitis was noted to involve less than 5 percent of his total body area, and less than 5 percent of exposed body areas. He did not have benign or malignant neoplasms or metastases, and no scarring or disfigurement was noted. No other physical complications or functional impairment was noted. In a February 2021 addendum, the examiner provided a retrospective opinion regarding the severity of the rash during flareups since March 17, 2010, the effective date of service connection. The examiner stated that since the onset of the Veteran's dermatitis condition, he had a nearly constant rash over the center of his face and chest. The examiner noted an "erythematous papular rash." Additionally, the examiner stated that the rash was not evident in the August 2014 VA exam because he had been applying the medication provided and avoided the sun. During his examination, the Veteran stated that he stopped applying the medication. The examiner opined that as per the Veteran's assertions, his rash is active in a "chronic, persistent fashion, showing up nearly every day at a mild intensity." Relevant medical records reveal that the Veteran sought treatment for his skin condition. In a September 2014 clinic note, the Veteran's treating physician documented the Veteran's complaints of rashes. In a May 2018 VA clinic note, the Veteran's treating physician reported "small, round, nontender subcutaneous lesion, palpated in left axilla." Upon review of the evidence of record, the Board finds that while the Veteran uses topical medications on a near constant basis, a compensable rating is not warranted, as the use of corticosteroids in this case was topical and not systemic therapy. The medical evidence reveals that throughout the period on appeal, the Veteran's atopic dermatitis affects less than 5 percent of both the exposed and total area of Veteran's body. Both examinations also confirm the use of topical corticosteroid medications to address his disability. The evidence also does not reflect that the use of the topical corticosteroids resulted in side effects that affected areas of the body other than the Veteran's face and chest. The remainder of the record does not otherwise support a finding that the use of topical corticosteroids to by the Veteran is equivalent to the use of corticosteroids or other immunosuppressive drugs that would affect his entire body. See Burton v. Wilkie, 30 Vet. App. 286 (2018) (for a treatment to qualify as systemic under DC 7806 the treatment must pertain to or affect the body as a whole and to operate as treatment of disease). The Board acknowledges the Veteran's belief that his disabilities are more severe than as reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to report his symptoms, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his dermatitis disability. The Board has also considered whether staged ratings under Fenderson are appropriate for the Veteran's service-connected disability; however, the Board finds that his symptomatology has remained the same throughout the period on appeal. Therefore, assigning staged ratings for such disabilities is not warranted. For these reasons, in consideration of both the lay and medical evidence of record, the Board finds the use of topical corticosteroids in this case was topical, not systemic, therapy and, thus, does not provide a basis on which to assign a compensable rating under DC 7806 under either the old or new criteria. Furthermore, both the August 2014 and February 2021 VA examination reports indicate that the Veteran's atopic dermatitis does not cause disfigurement of the head face or neck; thus, a compensable rating is not warranted under DC 7800. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Finally, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.