Citation Nr: 21032490 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-48 254 DATE: May 27, 2021 ORDER Entitlement to a rating of 60 percent, but no higher, for a skin condition is granted. FINDING OF FACT The Veteran's skin condition is increased to a 60 percent disabling rating, which is the maximum schedular rating permitted for Diagnostic Code (DC) 7806. CONCLUSION OF LAW The criteria for a rating of 60 percent, but no higher, for a skin condition have been met. 38 U.S.C. §§ 1155, 5107; 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 in the United States Navy from August 1999 to August 2003 and from July 2006 to April 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran is in receipt of a 100 percent combined schedular evaluation and special monthly compensation (SMC) for his service-connected disabilities effective September 2016. As an initial matter, the Board notes this matter was previously before the Board in November 2018 and was remanded for further development. The RO was directed to obtain a VA medical opinion as to whether the use of any corticosteroid, including topically applied, may be considered a "systemic therapy" through the method by which the therapy on the entire body (if any) AND whether the use of such therapy may produce side effects and if so, to identify such effects. New VA examinations were obtained in August 2020, December 2019, and March 2019. None of these VA examinations addressed the questions requested in the November 2018 Board remand directives. As such, the Board finds substantial compliance with its remand directives has not occurred. Stegall v. West, 11 Vet. App. 268 (1998). However, the Board believes that delay of this case once again must be avoided. The Board finds it may adjudicate the claim as it will be granting the benefit sought on appeal, the maximum schedular rating for a skin condition, and therefore the Veteran will not be prejudiced by this adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a rating of 60 percent, but no higher, for a skin condition The Veteran contends his skin condition is more severe than currently rated. The Veteran's service-connected skin condition is currently rated 30 percent disabling under Diagnostic Code (DC) 7806. DC 7806 indicates the skin condition should be evaluated under the General Rating Formula for the Skin. While this appeal was pending, VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801,7802,7817,7819,7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the August 2018 effective date will be considered under both the old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Pursuant to 38 C.F.R. § 4.118, DC 7806 prior to August 13, 2018, a noncompensable rating was warranted when the skin condition covered 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 month period. A 10 percent disability rating was warranted 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 the 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 was warranted 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. Important for this case, a 60 percent rating was warranted 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. 38 C.F.R. § 4.118 (prior to August 13, 2018). Under the General Rating Formula for the Skin, effective August 13, 2018, a 0 percent rating is provided for no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) 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 provided 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. A 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. 38 C.F.R. § 4.118 (effective August 13, 2018). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that under DC 7806, "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." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. July 14, 2017). The Federal Circuit held that 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 large scale applications of topical corticosteroids amount to systemic therapy. See Burton v. Wilkie, 30 Vet. App. 292 (2018). In support of his claim, the Veteran submitted a treatment record from his private treatment provider, Dr. K.I. He indicated the Veteran's skin condition covers approximately 70 percent of his body and he has been prescribed medication to control the condition. See May 2020 Medical Treatment Record. The Veteran also underwent several VA examinations in August 2014, October 2016, March 2019, December 2019, and August 2020. The VA examiners noted the Veteran's skin condition has varied from covering 5 to less than 20 percent of total body area and exposed body area, and 20 to 40 percent of total body area with 5 to less than 20 percent of exposed area. The record also reflects multiple medications have been prescribed to treat the Veteran's skin condition. See May 2020 Correspondence. The Board finds that after a review of the record, the evidence is in relative equipoise as to how much of the Veteran's body has been covered by his skin condition. Therefore, granting the Veteran the benefit of the doubt, and wishing to avoid yet another remand, the Veteran is entitled to the maximum schedular rating of 60 percent for his skin condition. In this regard, the Board again notes the Veteran is in receipt of a 100 percent combined schedular evaluation and has special monthly compensation (SMC) for his service-connected disabilities effective September 2016. Another remand of this case, on the limited issue before the Board, in light of the current rating and the prior remands that did not succeed, is simply not in the best interests of the VA or the Veteran. There is no basis for the Board to assume that another remand would succeed. (Continued on the next page) Therefore, entitlement to a rating of 60 percent, but no higher, for a skin condition is granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.