Citation Nr: 21031632 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-15 807A DATE: May 24, 2021 ORDER Entitlement to a 60 percent rating for rash and lesions associated with pruritis ani from March 17, 2015 is granted. FINDING OF FACT For the entire period on appeal, the Veteran's skin rash and lesions caused constant pain and itching and have required constant or near-constant systemic antihistamine treatment. CONCLUSION OF LAW The criteria for a rating of 60 percent, but no higher, for the Veteran's skin rash and lesions have been met, effective March 17, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1952 to July 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision. In an August 2018 decision, the Board in relevant part denied entitlement to a compensable rating for skin rash/lesions prior to January 10, 2018, and a 10 percent rating thereafter. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in January 2020 that, in relevant part, vacated the Board's decision denying entitlement to increased evaluations for the Veterans' rash/lesions and remanded to the Board for action consistent with the JMPR. Specifically, the parties to the JMPR agreed that the Board had failed to address whether the Veteran's constant or near-constant use of antihistamine therapy was "like" a systemic corticosteroid or immunosuppressive drug. In May 2020, the Board remanded the claim to obtain a medical opinion as to whether the Veteran's topical treatments constituted systemic therapy. The requested opinion was obtained in September 2020. A Supplemental Statement of the Case (SSOC) was issued in September 2020 and the claims were recertified to the Board. In November 2020 the Board remanded the Veteran's claims again to obtain a new VA skin disease examination, as the Veteran had reported that his rash and skin lesions now covered the majority of his body. The new examination was provided in March 2021. Considering the above, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Increased rating for skin rash and lesions. The Veteran seeks a compensable rating for his service-connected rash and lesions associated with pruritis ani prior to January 10, 2018, and a rating in excess of 10 percent thereafter. After considering the evidence, the Board concludes a uniform 10 percent rating, but no higher, is warranted for the Veteran's skin disorder. Applicable Law Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's skin rash and lesions are evaluated under Diagnostic Code 7806, which pertains to dermatitis or eczema. 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable disability rating is assigned for 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 12 months. A 10 percent rating is assigned for 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 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 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. 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. See 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systemic therapy is one that 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 need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Code 7806. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; 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 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 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 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: 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. See 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Skin disorders may also be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801 through 7805, depending on the predominant disability. Id. Effective August 13, 2018, VA regulations explicitly state that 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. See 38 C.F.R. § 4.118 (a). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Analysis The Veteran's rashes/lesions are currently assigned a 0 percent noncompensable rating from March 17, 2015 to January 10, 2018. The skin disability is assigned a 10 percent evaluation thereafter. After considering the evidence, the Board finds that a uniform 60 percent evaluation, but no higher, is warranted from March 17, 2015, the entire period on appeal. Specifically, the Veteran's skin disorders have required constant or near-constant systemic therapy throughout the period on appeal. Here, VA treatment records show the Veteran complained of and received treatment for his skin disability. In January 2015 he complained that medications were not helping with flareups of the anus and scalp. In February 2015, the Veteran reported he had been using hydrocortisone cream and witch hazel to his anus due in part to itching. Upon dermatological examination, mild erythema of the perianal skin was found, although there was no rash in the perianal or scrotal area. There was scaling of the scalp. Treatment records dating from April 2015 show a prescription for hydroxyzine pamoate, an oral antihistamine, to treat the Veteran's skin itching. The Veteran was afforded a VA skin diseases examination in April 2015. A diagnosis of seborrheic dermatitis is noted. The examiner recorded a small scaly patch on the left lower posterior scalp and determined that the Veteran's dermatitis affected less than 5 percent of the total body area, and less than 5 percent of the exposed body area. The Veteran had been treated with Ketoconazole, a topical cream, constantly/near constantly in the past 12 months The Veteran was also afforded a VA rectum and anus conditions examination in April 2015. The Veteran reported burning and itching of the anal region and physical examination showed an area of redness 5 centimeters in any direction from the anus. In an April 2015 letter the Veteran reported that the pruritis on his anus, scrotum, and scalp areas had worsened and he now had constant itching, pain, and moisture. An April and May 2016 treatment record shows complaints of pruritis on the head, anus, and genitals and that chronic pain remained an issue. He continued to have active prescriptions for ketoconazole topical cream, witch hazel, zinc oxide ointment, pramoxine hydrocortisone, and hydroxyzine pamoate. The Veteran was provided another VA skin disorders examination on January 10, 2018. The Veteran reported constant severe itching of his anus, scrotum, and scalp. Treatment included daily hydroxyzine pills, topical hydrocortisone Ketoconazole petroleum, and a topical iodine solution for worsening symptoms around his anus and scrotum. The Veteran had used each treatment constantly/near-constantly in the past 12-months. The Veteran's skin disability covered 5 to less than 20 percent of his entire body, and less than 5 percent of his exposed areas were affected. The examiner reported that the Veteran had several half dollar sized lesions on his scalp, a moist rash around his anus and other buttocks area, and that the scrotum felt moist but that there were no infections. As noted above, the Court vacated the Board's August 2018 decision denying increased ratings for the Veteran's skin, specifically because the Board had erred by failing to address whether the Veteran's constant or near-constant use of antihistamine therapy was "like" a systemic corticosteroid or immunosuppressive drug. See December 2019 Joint Motion for Partial Remand at page 4; see also Burton v. Wilkie, 30 Vet. App. 286, 295 (2018). The Board remanded these claims in June 2020 to obtain an addendum opinion to determine whether the Veteran's treatments for his skin constituted systemic therapy. The addendum was provided in September 2020. The examiner, who is a physician, reviewed the record and noted the Veteran used hydrocortisone cream, oral hydroxyzine, and ketoconazole iodine solution for itching. The examiner determined that the hydrocortisone cream was not systemic therapy because the cream did not affect the body as a whole and was not like or similar to a corticosteroid or other immunosuppressive drug. The examiner also determined the remaining medications were not systemic therapies. The Veteran was provided a VA skin examination in March 2021 following reports that his rashes and lesions covered the majority of his body. The Veteran reported reddened, itchy areas of the scalp, anus, and scrotum that were worsening. Physical examination showed hairline skin breaks surrounding the anus due to scratching. There was no apparent flaking of skin. Pruritus ani required dibucaine, Vaseline, and clindamycin topical creams to be used daily on a constant or near-constant basis for the past 12 months. The Veteran's skin disability covered 5 to less than 20 percent of his entire body, and less than 5 percent of his exposed areas were affected. Based on the foregoing, the Board finds that a uniform 60 percent rating is warranted for the Veteran's rash and lesions for the entire period on appeal. Specifically, VA treatment records and examinations show the Veteran's skin disorders and itching symptoms have required constant or near-constant use of hydroxyzine, a systemic oral antihistamine therapy, at all times during the period relevant to the appeal. Although the March 2021 examiner noted only topical treatments, we note that contemporaneous VA treatment records continue to show prescriptions for oral hydroxyzine. For example, a June 2020 mental health encounter notes a current prescription for hydroxyzine for itching and rashes. An active outpatient medications list dated December 2020 shows the Veteran was prescribed hydroxyzine pamoate and was taking once capsule by mouth three times per day as needed for itching. Although the medication was temporarily discontinued, VA records reflect this was due to the Veteran being admitted to the hospital for acute heart failure. Under both the old and new versions of Diagnostic Code 7806, a maximum 60 percent evaluation is assigned for constant or near-constant systemic therapy over the past 12-month period. We note that the first indication the Veteran was prescribed hydroxyzine dates from an April 2015 VA treatment note, and that subsequent treatment records and VA examination reports make clear that he has maintained an active prescription since. Although systemic antihistamines are not included on the list of examples of systemic therapy contained in the diagnostic code, the code makes clear that the provided list is not exhaustive. In reaching this decision, the Board is aware of the September 2020 VA addendum opinion wherein the examiner determined that none of the Veteran's medications, including hydroxyzine, were systemic therapies. However, the examiner's determination is explicitly contradicted by new VA regulations stating that systemic therapy is treatment that is administered through any route other than the skin. See 38 C.F.R. § 4.118 (a). The Veteran's hydroxyzine, which is oral and has been constantly prescribed throughout the period on appeal, is now by law a systemic therapy. Furthermore, the examiner merely concluded without explanation that hydroxyzine was not systemic. The examiner failed address whether the hydroxyzine is "like" a corticosteroid or other immunosuppressive drug. See Burton, 30 Vet. App. 286. We acknowledge the new version of 38 C.F.R. § 4.118 (a) is only applicable from August 13, 2018 forward. However, the nature of the Veteran's treatments for his skin disorder has not changed during the period on appeal. The first indication that he was prescribed hydroxyzine dates from an April 2015 VA treatment note, mere days after VA received the Veteran's increased rating claim on March 17, 2015. It would be illogical for the Board to consider the Veteran's hydroxyzine a systemic treatment from only August 13, 2018 forward. As such, we find the Veteran's skin disorder has required constant or near-constant systemic therapy during the entire period on appeal. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that the Veteran would warrant a higher rating under a different diagnostic code for disfiguration or scars. See 38 C.F.R. § 4.118. As a 60 percent evaluation is the maximum schedular rating under Diagnostic Code 7806, there is no basis to award a higher evaluation. The current 60 percent evaluation contemplates the Veteran's continuous use of systemic medication throughout the period on appeal, beginning March 17, 2015, the date of claim. Here, we note that the medication provided to the Veteran is not on the new list. However, the list is not exclusive. Furthermore, the AOJ accepted the opinion that was provided, even though the record established an oral use of medication. The Board shall not remand again. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.