Citation Nr: 21039879 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-15 659A DATE: July 1, 2021 ORDER Entitlement to a compensable disability rating for dermatitis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to February 26, 2015, is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's dermatitis covered less than 5 percent of the total body area and had no exposed areas; he did not take intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, retinoids, biologics, photochemotherapy, or PUVA (psoralen plus ultraviolet light of A-wavelength) treatments, and there was no functional attributable to the service-connected skin disability. 2. Prior to February 26, 2015, the Veteran did not qualify for a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7806. 2. Prior to February 26, 2015, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to November 1976. He died in March 2017. The substitute appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from October 2012 and July 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, December 2019, and September 2020, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development, including adequate medical opinions for the dermatitis as well as Social Security Administration (SSA) records. The Board notes that in a November 2016 rating decision, the RO granted a 100 percent disability rating for hepatic carcinoma with hepatitis C and cirrhosis of the liver, effective February 26, 2015. Given the full 100 percent granted at that time, the TDIU the question became moot from that date. Other than the hepatic carcinoma with hepatitis C and cirrhosis of the liver, the Veteran's only other service-connected disability from February 26, 2015 was his dermatitis, which is rated as noncompensable. Neither Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) nor Bradley v. Peake, 22 Vet. App. 280 (2008) are implicated from that date. 1. Entitlement to a compensable disability rating for dermatitis. During his lifetime, the Veteran contends that he was entitled to a compensable rating for his service-connected dermatisis. In a June 2012 lay statement, he reported that his dermatitis had been getting worse over time and that he periodically would have flare-ups including pus filled rashes, itchiness, and pain. He reported that the flares would occur during work and that he could not work during that time. He was also only treated with cream for a temporary fix for the itching. The flare-ups were leaving physical permanent scars on his legs, hands, and feet. In a September 2020 lay statement, the appellant claimed that the Veteran would have flare-ups constantly that would get so bad at times that his legs, hands, feet, arms, thighs, torso and private areas would get blister sores with seeping pus that was painful and made walking difficult. She reported the Veteran made many trips to the VA hospital for dermatitis, and they would give him cream every time, which did not give much relief. They also left permanent scars. Also, in 2008 he had a very serious flare-up. The Veteran's dermatitis is rated under Diagnostic Code 7806, for 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 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic 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, 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. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. 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. 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. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is dermatitis, as indicated by VA examinations. In the October 2013 VA examination for scars, the examiner diagnosed residual hypopigmentation from dermatitis on the hands, feet, and penis. The examiner noted there was residual hypopigmentation on sides of 2nd through 5th fingers on bilateral hands, sides of feet, and on glands of penis consistent with prior dermatitis. There were no scars on the trunk or extremities or head, face, or neck. There were no painful or unstable scars. There were no scars that limited function or functionally impacted the Veteran's ability to work. There were no findings of scars that were deep or superficial and/or nonlinear or linear. In a December 2013 VA addendum, the VA examiner noted that for the hands the hypopigmentation measured 3.75 square cm on the right and 2.5 square cm on the left. For the feet, they measured 18 square cm on the right and 12.5 cm square cm on the left. As such, rating the Veteran based on scars, for disfigurement of the head, face, or neck (DC 7800) or scars [DCs 7801 (deep and linear), 7802 (superficial and nonlinear), 7804 (unstable or painful), or 7805 (other effects)], is not supported by the record. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's dermatitis did not more nearly approximate 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. The June 2012 VA examiner noted past only treatment of topical corticosteroids of 6 weeks or more, but not constant. The dermatitis affected less than 5 percent of the total body and none of the exposed area. The October 2013 VA examiner noted treatment of systemic corticosteroids or other immunosuppressive medications of Dermaphor for rash on feet for less than 6 weeks. The dermatitis affected less than 5 percent of the total body and none of the exposed area. There was no functional impact on ability to work. As noted in prior remands, the Board determined that clarification was necessary to determine whether the service-connected skin disability medications, including topical medications should be considered as systemic medications that act like immunosuppressive drugs. They noted that prior remand orders showed conflicting evidence as to whether the Veteran's use of Dermaphor during the period at issue was systemic and immunosuppressive. The medical experts needed to also address whether the Veteran's documented use of topical hydrocortisone and similar medications was systemic. The prior remands found that the VA examination opinions obtained in October 2019 and March 2020 were inadequate. As such, the Board will not discuss them further. The Board finds that the newly obtained February 2021 VA examination opinion adequately addresses the remand directives. The VA examiner explained that the Veteran had only been treated with topical medications for his service-connected skin conditions. There was no objective evidence that he was treated with systemic steroids or immunosuppressive therapy for his skin condition. The Veteran was treated with topical therapies. There were no service treatment records that document any systemic treatment. None of the medications were systemic treatments. Additionally, the examiner found that based on a review of the medical information provided, to include the conflicting medical evidence and the VA remand letter, it was his medical opinion that it was less likely than not that the Veteran's topical treatments maybe considered systemic therapy. Reviewing the chart, the only treatments this Veteran had received for his skin was topical in nature and no matter how much or often they were used, they are not considered systemic therapy which would imply impact on the entire body. There is nothing in the file to support systemic treatment. Rather, based on a review of the medical information provided, to include the conflicting medical evidence and the VA remand letter, it was his opinion the Veteran has been treated with topical corticosteroids. The Veteran had multiple notes and prescriptions for triamcinolone which is a topical steroid. There was nothing to support systemic treatment. In a March 2021 VA examination addendum, the examiner further noted that based on a review of the claims file, it was less likely than not that the Veteran needed topical therapy quite frequently on a at least a monthly basis. The Board notes that the Veteran himself indicating during his lifetime that he was only ever treated with topical cream. He never reported that his dermatitis covered his entire body, which would include the head. The Federal Circuit found it was error to read the diagnostic code "as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). That court 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.'" 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. Also, as noted above, in Burton, the Court found 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). The Board does not find the Veteran's use of topical cream used during the period under review affected the body as a whole in treating the Veteran's skin condition. It was not like a corticosteroid or other immunosuppressive drug. Such a determination is supported by the findings of the March 2021 VA examiner, who provided the most probative analysis on these questions. The Board finds that the preponderance of the evidence is also against the assignment of a compensable evaluation under the new, August 13, 2018, regulations because the Veteran's did not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12- month period. As shown in the medical evidence discussed in the above analysis. The VA examiners consistently found the dermatitis involved less than 5 percent of the entire body and none of the exposed areas. Also, intermittent systemic therapy was not indicated as previously explained. The Board acknowledges that the parties believed that the disability on appeal was more severe than the assigned disability rating reflects. Veterans are competent to report observable symptoms, to include lay reports of record, and their reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, they have not asserted, and medical treatment records do not show, that the Veteran's disability more nearly approximates the criteria in the next higher rating. Although the Veteran and the appellant have reported flare-ups that affected ability to work in the past, the Board notes that the Veteran had not been working during the appeal period. Moreover, neither the Veteran nor the appellant indicated that such flare-ups had occurred during the appeal period and VA medical records during the appeal period are generally negative for any such severe flare-ups, though they do note occasional provision of treatment cream. 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 he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. None of the parties has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for dermatitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU prior to February 26, 2015. Per his July 2015 TDIU application, the Veteran last worked in November 2011 and became too disabled to work in 2012. He indicated that cirrhosis of the liver and hepatitis C with liver mass prevented him from employment. Prior to February 26, 2015, in the May 2014 notice of disagreement, the Veteran had reported that his hepatitis C caused symptoms of daily fatigue, muscle soreness, diarrhea, upset stomach and loss of appetite. In a June 2012 statement, the Veteran reported that his dermatitis flare- ups interfered with employment due to puss filled rashes, itchiness, and pain and that he could not work during those times. In his January 2017 VA Form 9 and associated document, his wife indicated hepatitis symptoms of muscle weakness, vomiting and nausea, itchy skin, swollen ankles, shortness of breath, weight loss and confusion beginning in late 2011 and early 2012 and escalating since that time. In contrast, VA medical records include discussions regarding employment history. In a November 2005 VA medical record, the Veteran reported that he had injured himself on the job and had back surgery last year, but that the surgery was unsuccessful and he had chronic back pain. In a December 2005 VA medical record, he reported that he had graduated high school and prior work experience was as a machine operator on a production line, but he stopped working in 2003 because of a back injury from picking up heavy objects. The examiner noted unemployment due to chronic back pain. An April 2006 VA medical provider found that the Veteran had a back injury while on the job as a machine operator and following surgery for ruptured discs, was noted to be stationary. He opined that it was unlikely that the Veteran would be able to return to work requiring lifting, prolonged standing or sitting or gross manipulation with the left hand. An April 2008 VA medical record also notes that the Veteran reported some difficulty keeping jobs due to his alcohol use and more recently concentration problems. SSA records also indicate that the Veteran was involved in a post-service work-related back injury. A February 2004 private medical record noted a November 2003 work injury to the back and subsequent back treatment. A December 2005 disability report noted that the Veteran's alleged onset of unemployability was January 2004. The report noted a work history that included machine operator, utility worker, and warehouse worker. His former employer, Allied Universal, indicated to VA that he had last worked from them in February 2010 as a security officer, until he resigned to take another job. An October 2012 SSA consult examination determined that the primary disability of the Veteran was osteoarthritis and the secondary one was non-severe organic mental disorders. The Veteran was not service connected for either such disorders. The July 2013 SSA decision noted that the Veteran had testified that he could not work due to pain in his lower back that affected his ability to sit, which radiated to his left hip and that he also had shoulder surgery and pain and had limitations of the left upper extremity. Specific to the service-connected disabilities during the current appeal period from his May 2012 claim to February 26, 2015, the June 2012 VA examiner found that the dermatitis caused no functional impact on work. The October 2013 VA examiner found no limitation of function or functional impact on ability to work due to scars. He also found no functional impact on ability to work due to dermatitis. The January 2014 VA examiner for hepatitis C found that any occupational task would be mildly delayed secondary to fatigue but not contraindication to perform these tasks in most occupations. The March 2015 VA examiner, who performed a VA examination just after the February 26, 2015 effective date of the 100 percent disability rating (which the RO had granted based on the first finding of hepatic carcinoma in VA medical records per the November 2016 rating decision) found no functional impact on ability to work at that time, despite noting various symptoms. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Prior to February 26, 2015, the Veteran was service connected for hepatitis C with liver mass (10 percent) and noncompensable dermatitis and cirrhosis of the liver associated with hepatitis C with liver mass. He had a combined 10 percent disability rating. He thus did not meet the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). Further, the most probative evidence does not show that his service-connected disabilities alone rendered him unable to secure and maintain substantially gainful employment prior to February 26, 2015. Therefore, referral for extraschedular consideration is not warranted. Neither the Veteran nor the appellant has raised any other issues with respect to the TDIU claim prior to February 26, 2015, nor have any other assertions been reasonably raised by the record. See Doucette, supra. (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). Thus, a TDIU prior to February 26, 2015, is not warranted. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.