Citation Nr: 21030861 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-26 705 DATE: May 19, 2021 ORDER Prior to November 30, 2018, entitlement to a 60 percent rating, but no higher, for service-connected atopic eczema is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, prior to November 30, 2018, the Veteran's eczema was treated with systemic corticosteroids or other immunosuppressive medications such as Hydroxyzine HCL on a constant/near constant basis. CONCLUSION OF LAW The criteria for entitlement to 60 percent rating, and no higher, for service-connected atopic eczema prior to November 30, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1983 to April 1986. In June 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. In July 2019, the Board remanded the issue for additional development, to include a VA examination. In August 2020, a Supplemental Statement of the Case was issued, denying entitlement to a rating higher than 30 percent prior to November 30, 2018. The matter now returns to the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If two disability evaluations are potentially applicable, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See U.S.C. 5107; 38 C.F.R. § 3.102. Entitlement to a disability rating higher than 30 percent for atopic eczema prior to November 30, 2018 The Veteran contends that a rating in excess of 30 percent is warranted for her eczema, prior to November 30, 2018. See NOD, September 2020. Her eczema is currently rated under Diagnostic Code 7806. Service connection for eczema was granted in the August 1997 rating decision, with a noncompensable rating from October 23, 1996. A May 2002 rating decision increased the rating to 10 percent, effective August 7, 2001. An August 2004 rating decision increased the rating to 30 percent, effective August 7, 2001. An August 2020 rating decision increased the rating to 60 percent, effective November 30, 2018, the date the medical evidence showed a worsening of the Veteran's skin disability based on her need to be prescribed an oral immunosuppressive drug. 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. Under the new criteria, Diagnostic Code 7806 is rated under the General Rating Formula for the Skin. The General Rating Formula for the Skin provides a 30 percent rating for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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. Id. A maximum 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. Id. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118; DC 7806. Under the old rating criteria, Diagnostic Code 7806 provides that 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. Id. A maximum 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. Id. Relevant to the instant case, VA regulations now also explicitly state that for the purposes of skin disability ratings, "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." Id. § 4.118(a). For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one 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 needs be addressed if the treatment is clearly systemic. Id. In Burton v. Wilkie, CAVC held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Id. In making all determinations, the Board must fully consider the lay assertions of record. The Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran is competent to report symptoms of her skin disorder. The Veteran is competent to describe her symptoms and their effects on employment or daily activities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Diagnostic Code 7806 also provides that the symptoms at issue could be rated under other potentially applicable diagnostic codes. The General Rating Formula for the Skin also provides that skin disabilities may be rated as scars (Diagnostic Codes 7801, 7802, 7804, 7805) or disfigurement of the head, face, or neck (Diagnostic Code 7800), depending on the predominant disability. 38 C.F.R. § 4.118. Other disability ratings may be assigned only if the symptomatology for the disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Veteran's eczema does not involve scarring or disfigurement of the head, face, or neck. No scarring or disfigurement were noted on either the January 2013 or December 2016 VA examinations. Consequently, Diagnostic Codes 7800, 7801, 7802, 7804, and 7805 do not apply. After having considered all the evidence of record, the Board finds that a 60 percent disability rating for the Veteran's atopic eczema is warranted prior to November 30, 2018. A medical note from September 2011 noted eczema on arms and legs. Upon examination, eczema, consistent with atopic eczema was noted. The Veteran noted disliking Diprolene due to skin thinning. The Veteran was prescribed Trianex (topical) for nightly use and instructed to take bleach baths twice a week. A dermatology note from December 2012 shows the Veteran was seen for an eczema flare-up. It was noted she has used Hydrocerin cream, Pimecrolimus cream, Betamethasone ointment, Hydroxyzine 10mg and 25 mg, and Loratadine 10mg. The Veteran reported no improvement with these medications. Intensity was reported as moderate, and symptoms appeared to be worsening. Associated symptoms include itching. Upon examination, eczematous patches on the shins with excoriations were noted. She was prescribed steroids for itching. A February 2012 outpatient note reported the Veteran was advised to take bleach baths twice a week, use Cetaphil moisturizer, Trianex 0.05 percent ointment and Diprolene ointment. A March 2012 medical note reported the Veteran was seen for a recheck of her eczema. She noted she has it "off and on." She noted the Trianex has helped some. Upon examination, she was reported as "pretty clear today but she still has a little bit of itching on the arms and legs." She was to continue the current regiment, including Dove soap, Eucerin cream in the morning, and Clorox baths a couple of times a week. She was instructed to also use Protopic ointment at night. A pharmacy consultation note from April 2012 noted the Veteran was disapproved for N/F use of Tacrolimus (Protopic). It was noted for the Veteran's eczema, former treatment included multiple oral antihistamines, betamethasone ointment, hydrocortisone and ketoconazole, and moisturizers. Active medications included Betamethasone Dipropionate 0.05 percent cream to apply to affected areas twice a day (issued February 2012), Hydrocerin moisturizing cream, and Hydroxyzine HCL 10 mg tablet to take every 6 hours as needed for itching. A primary care outpatient note from August 2012 noted chronic eczema that has caused scars/itching. It was noted she is a non-responder to Diprolene, Benadryl, and Eucerin and has started Protopic 0.1 percent with some relief. She was referred to a VA Dermatologist/Allergist. Upon examination, she had hyperpigmented lesions in different areas of her skin, associated with excoriation and lichenification. During a January 2013 dermatology follow up visit, the Veteran reported her eczema was 80 percent better with the course of Prednisone prescribed during the last visit. Upon examination, no rashes or lesions were noted. The Veteran was afforded a VA Skin examination in January 2013. A diagnosis of dermatitis or eczema in the 1980s was noted. The Veteran noted in recent months she had been treated twice with a Medrol dose pack (one week) for flare-ups of her eczema. She noted the constant use of emollient creams, such as Eucerin and with flare-ups she used Protopic ointment. No scarring or disfigurement were noted. Systemic corticosteroids or other immunosuppressive medications were noted, with a total duration of less than 6 weeks in the past 12 months. Topical corticosteroid Protopic and Eucerin lotion were noted on a constant/near-constant basis. No debilitating or non-debilitating episodes were reported in the last 12 months. Upon physical examination, the Veteran's eczema was noted to cover between 5 percent to 20 percent of the total body area and none of the exposed area. When asked to describe the appearance and location, the examiner noted "two small (3cm diameter) patches on her mid back, patchy maculopapular lesions separated by normal skin on the dorsum of her bilateral forearms, patchy maculopapular lesions separated by normal skin on the front and back of her legs below the knees." A primary care note from January 2014 noted both Betamethasone Dipropionate 0.05 percent ointment and Hydroxyzine HCL 10mg as active prescriptions. A medical record from March 2014 noted a flare-up of eczema. Upon examination, multiple excoriations and hyperpigmentation of the skin of the lower extremities was noted. She was prescribed Prednisone for the flare-up. Betamethasone Dipropionate 0.05 percent ointment was listed as an active medication, to use twice a day on the affected area. A medical record from March 2015 noted a flare-up of eczema of her hands, forearm, and legs. She was prescribed Prednisone for the flare-up and Hydroquinone for the hyperpigmentation. Betamethasone Diproprionate 0.05 percent ointment was listed as an active prescription, to use on affected areas twice a day. Hydroxyzine HCL 10 mg tablets were listed as an active medication. Multiple excoriations and hyperpigmentation of the skin in the lower extremities were noted. The Veteran was afforded an additional VA examination for her skin in December 2016. At that time, she endorsed waxing and waning pattern of involvement with intensely pruritic areas and flare-ups which she treated with oral Prednisone for 5-14 days at least 3 times a year. She also has intensely itching patches of skin continuously which she scratches and then the scabs become hyperpigmented. There was no scarring found as a result of the Veteran's skin disability nor was there any systemic manifestations (fever, weight loss, or hypoproteinemia). Treatment was constant/near-constant use of Hydroxyzine for itching due to eczema, and topical corticosteroids for eczema. Other topical medications for hyperpigmentation and systemic corticosteroids or other immunosuppressive medications were noted as 6 weeks or more, but not constant. There were no debilitating or non-debilitating episodes as a result of her skin disability. On physical examination, the examiner determined that the Veteran's eczema covered between 20 and 40 percent of the total body area and none of the exposed area. When asked to describe the appearance and location, the examiner stated, "scattered scant macules on breast, trunk, arms, and thighs. Abundant papules and excoriations on lower legs bilaterally." An April 2016 primary care note reported the Veteran has eczema "most of the time," and it flares up on and off. Topical Betamethasone and Prednisone were noted to be used, as needed. Hyperpigmentation and excoriation were noted as due to her eczema. A primary care note from April 2017 noted residual hyperpigmentation of her lower extremities from her eczema and on and off flare-ups. She was noted as taking Prednisone for flare-ups and started Allegra recently. Prednisone 10mg tablets were noted on the active medication list, to be taken 4 times by mouth every day for 4 days, then 3 tablets every day for 3 days. Betamethasone cream and Hydroquinone cream were noted as active medications. At her Board hearing in June 2019, the Veteran noted her last examination was in December 2016 and her condition had worsened since then. In January 2019, she went to see her own dermatologist and noted seeing her every 3 months. She testified her private dermatologist stated her eczema covered more than 50 percent of her body. She noted being on topical medication, and also Methotrexate in tablet form, which she would take every Monday. She started out taking 3 tablets every Monday, then was increased to six tablets every Monday. The topical creams she noted using on a daily basis, sometimes more than one a day. She endorsed daily itching that sometimes hinders her ability to sleep. Moreover, she noted for her dry skin she has bathed in Clorox for years. Sometimes three times a week. See Hearing Transcript, Page 7. Based off a review of the relevant medical and lay evidence, the Board finds that a 60 percent rating is warranted for the Veteran's eczema prior to November 30, 2018. Per various medical records and the Veteran's statements, the record reflects constant/near constant systemic treatment during this period on appeal, sufficient to meet the criteria for a 60 percent rating. VA records show Hydroxyzine on the active medication list in December 2012, April 2012, January 2013, January 2014, March 2014, and March 2015. In addition, in January 2013 Methylprednisolone was noted. During her December 2016 VA examination, treatment was noted as constant/near-constant use of Hydroxyzine for itching. Under the previous Diagnostic Code 7806 criteria (see prior section), a 60 percent rating was warranted with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that affects the entire body in its treatment of the condition at issue. Based on this Veteran's unique disability picture and treatment, her consistent use of Hydroxyzine, inter alia, constitutes a systemic therapy. However, a higher rating is not warranted for percentage of total or exposed body area affected. The probative evidence during this period of the appeal indicates that the Veteran's eczema did not cover more than 40 percent of her exposed or entire body area, as required for a higher rating for percentage of total or exposed body area affected. The Board notes throughout the pendency of this appeal, the Veteran has consistently asserted that her disability on appeal has been more severe than the assigned disability rating reflects, which the Board finds as credible. Moreover, the Veteran is competent to report observable symptoms, to include itchiness and dryness, and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the statements of the Veteran in support of her claim. Resolving reasonable doubt in the Veteran's favor, the Board finds the evidence supports the Veteran used systemic therapy, on a constant/near constant basis, meeting the criteria for a 60 percent rating. (Continued on the next page) Therefore, a maximum rating of 60 percent is warranted for the Veteran's service-connected eczema prior to November 30, 2018. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.