Citation Nr: 21031627 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-08 855 DATE: May 24, 2021 ORDER A compensable rating for skin disorder prior to July 1, 2016 is denied. A 30 percent rating for skin disorder from July 1, 2016, to August 11, 2020, is granted, subject to the laws and regulations governing the awards of monetary benefits. A compensable rating for skin disorder from August 12, 2020 onward is denied. REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The evidence of record shows that the Veteran's skin disorder affected 20 to 40 percent of his total body area and required a single 14-day course of oral therapy during the period from July 1, 2016, to August 11, 2020, while affecting less than 5 percent of total body area and requiring use of only topical non-systemic therapy during the periods from October 23, 2013, to June 30, 2016, and from August 12, 2020 onward. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a skin disorder prior July 1, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7813 (2016). 2. The criteria for rating a skin disorder at 30 percent, but not higher, for the period from July 1, 2016, to August 11, 2020, but not before nor after, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7813 (2016), 38 C.F.R. § 4.118, DC 7813 (Aug. 13, 2018). 3. The criteria for a compensable rating for a skin disorder from August 12, 2020 onward have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7813 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran honorably served on active duty from September 1989 to September 1993 and from February 2003 to May 2004, to include tours of duty in the Middle East from September 1990 to April 1991 and from April 2003 to April 2004. In a May 2015 rating decision, the Regional Office (RO) granted service connection for skin disorder initially evaluated as noncompensable and denied service connection for GERD. The Veteran appealed. In October 2019, the Veteran testified at the Board's hearing. In March 2020, the Board remanded the claims for a medical opinion as to the etiology of GERD and an evaluation of the more recent severity levels of skin disorder. In October 2020, upon obtaining the requested medical evidence, the RO issued a supplemental statement of the case affirming its prior decisions and returned the appeal to the Board. Of note, in March 2021, the United States Court of Appeals for Veterans' Claims vacated and remanded the portion of the October 2020 Board's decision denying the Veteran's claims for service connection for chronic back pain, a bilateral knee condition, a bilateral foot condition, a right eye condition, and hypertension, which will be addressed in a separate decision. Meanwhile, the Board has found that remanding the claim for service connection for GERD (discussed in the Remand section) and assigning a rating for skin disorder at 30 percent from July 1, 2016, to August 11, 2020, are warranted. The Veteran's skin disorder, namely, tinea versicolor, a form of dermatophytosis, affecting his bilateral arms, bilateral hands, face, chest, back, top of the feet, and abdomen, and manifesting as hypo-pigmentation, flaky blotchy skin, and erythema, is currently rated by analogy to dermatitis or eczema under Diagnostic Code (DC) 7806 and evaluated as noncompensable from October 23, 2013, the date of original claim for service connection. Given that the rating schedule specifically lists tinea versicolor under DC 7813, assigning DC 7813 in lieu of DC 7806 is appropriate in this case. Of note, both Diagnostic Codes use identical rating criteria. More specifically, the evaluations are based on either a total percentage of the entire body skin area affected, or a percentage of the affected exposed skin areas, or a total duration of systemic therapy during a 12-month period, if required. The Federal Circuit Court has held 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, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects "only the area to which it is applied" to count as a systemic therapy under the Code. However, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case and does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). On August 13, 2018, the VA adopted new regulations for skin disorders. Under the new regulations systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 83 Fed. Reg. 32,592 (July 13, 2018). The new regulations create a bright-line definition of topical and systemic treatment therapies. Prior to this change, the regulations did not define topical or systemic treatment and the determination of whether a Veteran received topical or systemic treatment was based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). As the Veteran filed a claim for service connection prior to August 13, 2018 and his appeal for an increased rating was pending on August 13, 2018, the Board will consider both the new and old regulations and apply the most favorable. Under the pre-amended schedule, the phrase "systemic therapy such as corticosteroids or other immunosuppressive drugs" was understood as generally exclusive of topical corticosteroids and "systemic therapy" referred to "affecting the body as a whole" in contrast to "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," or simply put, having a localized effect. See Johnson v. Shulkin, 862 F.3d 1351, 1355-56 (Fed. Cir. 2017). For the purposes of rating skin disorders under the amended schedule, "systemic therapy" means 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) (2020). The amended schedule also had replaced the phrase "such as corticosteroids or other immunosuppressive drugs" with "including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs." 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court 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. The Board must thus consider two questions, in any order, when determining whether topical treatment for a skin disorder constitutes "systemic therapy such as corticosteroids or other immunosuppressive drugs" under the pre-August 13, 2018 version of Diagnostic Code 7806: a) Whether the topical treatment operates by affecting the body as a whole in treating a veteran's skin condition; and b) Whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Only the second question needs to be considered if the treatment is clearly systemic. Here, as will be discussed, the Board finds that the Veteran's medication regiment is consistent with topical, rather than systemic therapy. Apart from the revised meaning of "systemic therapy" and more elaborate list of examples, the rating criteria have not changed and the particular percentages are assigned on the following bases. A noncompensable rating is assigned for characteristic lesions involving less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent is assigned for 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 when intermittent systemic therapy is required for a total duration of less than six weeks during a 12-month period. A 30 percent is assigned for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or when systemic therapy is required for a total duration of six weeks or more, but not constantly, during a 12-month period. A 60 percent is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or when constant or near-constant systemic therapy is required over a 12-month period. In cases where the different overall severity levels are shown during the different periods, the staged (different) ratings are assigned. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The particular percentages are assigned based on whichever severity level as contemplated by the Formula most closely approximates the Veteran's overall disability picture during particular periods. See 38 C.F.R. § 4.7. To that end, the Board must apply the pre-amended rating criteria for rating periods prior to the effective date of the amended regulations but may apply whichever criteria is more favorable to the Veteran for the periods after the revised regulations took effect. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the Veteran has not advanced any specific contention as to why he is entitled to a compensable rating for any specific period. Accordingly, the Board decided the claim based on the evidence of record. For the period from October 23, 2013, the date of the grant of service connection, to June 30, 2016, the day prior to a VA examination objective showing an increase in disability, a noncompensable rating must be assigned. During this period, for example, a March 2015 VA examination report reflects that the Veteran's skin disorder affected less than 5 percent of his entire body, to include no exposed areas affected, for which he required near-constant anti-fungal topical cream treatment of the affected areas. During this particular period, as discussed, anti-fungal topical creams that are applied to the skin and have localized effect. The anti-fungal creams do not impact the body as a whole and do not cause symptoms that would make them akin to a systemic therapy. Therefore, they do not constitute systemic therapy for rating purposes. It is also noted that the anti-fungal cream is not a corticosteroid. No other significant manifestations or treatments have been reported by the Veteran on examination or otherwise noted or observed by the examiner. This severity level warrants a noncompensable rating that is assigned for characteristic lesions involving less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy required during a 12-month period, notwithstanding the frequency and duration of its use. Nether the Veteran's medical treatment records nor his testimony suggest that the severity level of his skin disorder during this particular period was any greater than shown on examination. Also given that the rating criteria for skin disorders is successive, meaning that the criteria for a lower rating must be met before a higher rating may be considered, the Board finds that a compensable rating for the period from October 2013 to June 2016 is not warranted. For the next rating period from July 1, 2016, to August 11, 2020, a rating at 30 percent is warranted. A July 1, 2016 VA skin examination report reflects that the Veteran's skin disorder affected 20-40 percent of total body area, to include less than 5 percent of the exposed skin, and required topical treatment. This squarely meets the rating criteria for 30 percent, but not higher. The next higher, maximum schedular rating of 60 percent requires the evidence to show more than 40 percent of the entire body or more than 40 percent of exposed areas to be affected by the skin condition, or that treatment orthopedic the skin condition requires either constant or near-constant systemic therapy over a 12-month period, which has not been shown, suggested, or alleged in this case. The October 2019 hearing transcript reflects a statement from the Veteran that he had been treated with oral medication once for 14 days, which may warrant a rating at 10 percent, provided this oral medication in fact was either corticosteroid or other immunosuppressive drug. In either scenario, evaluations based on the duration of systemic therapy is an alternative rating criterion and does not provide the basis for separate evaluation when the rating criteria based on the affected skin area is met. Here, the evaluation based on a percentage of the total body area yields a rating at 30 percent which is more advantageous to the Veteran. As such, the Board finds that a rating at 30 percent, but not higher, is warranted from July 1, 2016, the date of the examination objectively showing the worsening in the overall severity levels of the Veteran's skin disorder, to August 11, 2020, but not later. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). At his October 2019 hearing, the Veteran reported that his skin disorder flares up approximately once a year, stays on his face, around back and such, and then goes away with treatment from topical creams. Based on his testimony, another VA examination was ordered to ascertain the current impairment from the skin condition. An August 12, 2020 VA skin examination report reflects that the Veteran's skin disorder affects his bilateral arms, bilateral hands, face, chest, back, and abdomen, with flare-ups approximately two to three times per month manifesting as hypo pigmentation, flaky blotchy skin, and erythema, for which he is prescribed topical anti-fungal cream. While the Veteran has reported scarring issues, there was no scarring or disfigurement observed, no skin neoplasms, and no systemic manifestations such as fever or weight loss. The examiner then notes small amount of erythema and hypopigmentation affecting total body area of less than 5 percent and less than 5 percent of the exposed areas, which required use of topical creams less than 6 weeks during the 12-month period preceding the examination. This assessment objectively shows an improvement of severity levels since the previous VA examination in July 2016. Otherwise, the evidence of record, to include the Veteran's statements and his medical treatment records, fails to suggest the levels any more severe than shown on examination. Given the fact that less than 5 percent of the total body area and less than 5 percent of the exposed areas were found to be affected, and the fact that treatment only required the use of topical creams rather than oral, injection, suppository, or intranasal corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs, the Board finds that a compensable rating for the period from August 12, 2020, is not warranted. As noted, the Veteran has not advanced any specific contention as to why he may be entitled to the higher ratings, apart from expressing his general disagreement with the rating assigned. Otherwise, the Board's sympathetic review of the entire claims file revealed no material evidence which may warrant assigning any ratings for the Veteran's skin disorder in excess of 30 percent effectuated from no earlier than July 1, 2016, to no later than August 11, 2020, which thus is granted. REASONS FOR REMAND In an March 2021 joint motion for remand (JMR), addressing issues other than the two captioned in this case, it was noted that the Veteran served on active duty from September 1989 to September 1993, and from February 2003 to May 2004, but the record does not include any service treatment records from the Veteran's second period of service (with the exception of an April 2004 post-deployment health questionnaire that Veteran provided). It was noted that the record reflects that a single request for records was made to the Records Management Center on November 12, 2014, and that an email response was received on December 16, 2014, stating that "several searches of our files activity" were conducted and that the Veteran's treatment records could not be located. The JMR suggested that it was not clear from the email why the records could not be obtained, nor was it clear from the email or any other record why further reasonable efforts could not be made in an effort to obtain the records. While the JMR addressed other issues, the absence of records might still be relevant to the issue of service connection for GERD. As such, a remand is required. Accordingly, the matter is REMANDED for the following action: Obtain the Veteran's service treatment records for the period of service from February 2003 to May 2004. If the records cannot be located, this should be documented in the claims file. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.