Citation Nr: 21040073 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-39 186 DATE: July 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for eczema prior to November 6, 2017 and a rating in excess of 60 percent from November 6, 2017 is denied. FINDING OF FACT 1. Prior to November 6, 2017, the Veteran's eczema was not characterized by lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; and, 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 was not demonstrated. 2. From November 6, 2017, the Veteran's has been in receipt of 60 percent rating for eczema, which is the maximum evaluation allowed under the applicable schedular rating criteria. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for eczema prior to November 6, 2017 and a rating in excess of 60 percent from November 6, 2017 have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Air Force from August 1995 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the assignment of a compensable rating for eczema. A May 2019 rating decision granted a 10 percent rating for the Veteran's eczema from April 20, 2015 (date of claim) and a 60 percent rating from November 6, 2017. The issues on appeal are recharacterized to reflect that development. In April 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript is in the record. The Board notes that the Veteran has separate ratings for scarring alopecia under DC 7830, Hirsutism (claimed as facial scars) under DC 7800, and left shoulder scars under DC 7805. An increased rating claim regarding these issues are not before the Board. Thus, the Board will limit its inquiry to an increased rating for eczema. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. See 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's service-connected eczema is rated under DC 7806. See 38 C.F.R. § 4.20. Notably, during the appeal period, changes were made to 38 C.F.R. § 4.118, DC 7806. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the 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. Prior to August 13, 2018, 38 C.F.R. § 4.118, DC 7806 provided as follows: A 60 percent rating is assigned when 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. A 30 percent rating is assigned when 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 10 percent rating is assigned when 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 noncompensable rating is assigned when 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. Prior to August 13, 2018, VA regulations did not define "topical therapy" or "systemic therapy" treatment. In Johnson v. Shulkin, the Federal Circuit Court, analyzing 38 C.F.R. § 4.118, DC 7806, held "the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case." 862 F.3d 1351, 1355 (Fed. Cir. 2017). The Federal Circuit went on to opine that a topical therapy could be systemic if it was applied on a large enough scale. Id. Yet, the Federal Circuit did not state whether the scale of administration is the only way a topical therapy could be systemic or if that was merely an example. In Burton v. Wilkie, the Court of Appeals for Veterans Claims provided clarification about what "factual circumstances" may be relevant. 30 Vet. App. 286 (2018). The Burton court held that the Board must determine whether a topical treatment operates by affecting the body as a whole in treating the veteran's skin condition. Stated a different way, the Board must decide how the topical treatment works not by its contact with the affected location of the condition on the body, but instead in some other way that affects the body more broadly. The court further stated that "[h]ow a topical treatment works is a factual question that may, but not necessarily, require a medical opinion for its resolution. The Board may make such a factual finding based on other evidence, such as medical dictionaries." Id. (citations omitted). Following the Johnson decision, VA amended its regulations, effective August 13, 2018. As of August 13, 2018, 38 C.F.R. § 4.118, DC 7806 provides as follows: At least one of the following for a 60 percent rating; 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. At least one of the following for a 30 percent rating; characteristic lesions involving 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. At least one of the following for a 10 percent rating; 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 noncompensable rating 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. Both versions of DC 7806 provide that a veteran's dermatitis may be rated "as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability." See 38 C.F.R. § 4.118, DC 7806 (prior to and as of August 13, 2018) (also instructing that this rating instruction does not apply to DC 7824). VA now defines "topical therapy" as "treatment that is administered through the skin." 38 C.F.R. § 4.118(a) (2021) (emphasis added). VA now defines "systemic therapy" as "treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin." Id. (emphasis added). The Veteran was afforded a July 2015 VA examination (VAX). She reported having eczema on her left calf in service and that the current eczema on her right upper thigh area was resolving. The VA examiner determined that she had scarring or disfigurement of the head, face, or neck, but it was limited to her service-connected alopecia as it was related to her hair loss on the scalp of the head. The Veteran did not have any benign malignant skin neoplasms (including malignant melanoma). She did not have any systemic manifestations due to any skin diseases. She had not been treated with oral or topical medications in the past 12 months for any skin condition. She did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. She did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. She did not have any non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. The approximate total body area and approximate total exposed body area related to her eczema was none. She pointed to an area of the slight hyperpigmentation on the right upper thigh 5 x 3 cm that was healed and smooth. The VA examiner determined that if this was eczema it had healed. The Veteran did not have a benign or malignant neoplasm or metastases related to eczema. She had a tiny (0.2 cm x 0.1 cm) keloid on the right earlobe just below the ear piercing that was nontender to palpation and touch. The percentage of total exposed body was less than 1 percent. The percentage of total body was less than 1 percent. Her skin condition did not impact her ability to work. The Veteran was afforded another VAX in November 2017. The VA examiner determined that she received on going treatment for her eczema and was followed by Tampa VA Dermatology. She reported applying topical steroid creams to the affected areas, applying spot treatments, and applying Eucerin cream daily to hydrate her skin. For itching she reported using Zyrtec that was also used for seasonal allergies. Her keloid scars were determined to be related to ear piercings and from an infected insect bite on the left shoulder that resulted in a keloid scar after healing. The Veteran denied scarring from her eczema. When the eczema is present, she has patches that are located on her arms and legs. She had small patches affecting the right hand, forearm, right thigh, and left lower leg. She had scarring or disfigurement of the head, face, or neck. However, the keloid scar to the ear and left shoulder were not related to her history of eczema. The Veteran was treated with oral or topical medications in the past 12 months for her eczema. She was treated with Zyrtec constantly or near constantly over the past 12 months, with a topical corticosteroid i.e. fluocinonide 0.05% cream for 6 weeks or more but not constantly over the past 12 months, and with a topical medication i.e. Eucerin lotion constantly or near constantly over the past 12 months. There had not been any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. She did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. She did not have any non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. The total effected area of her body was less than 20 percent but at least 5 percent. The exposed body area was less than 5 percent. The Veteran did not have a benign or malignant neoplasm or metastases related to eczema. She did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to eczema. Her skin condition did not impact her ability to work. Her eczema was symptomatic and required the use of topical medications and lotions to manage her eczema. VA treatment records indicate that the Veteran was prescribed Eucerin and Fluocinonide for daily use since October 2015, about 5 months after her July 2015 VAX. It was unclear whether her use of Fluocinonide 0.05 percent cream or Eucerin cream amounted to systemic therapy under the old pre-2018 version of DC 7806. Such served, in part, for the basis of the Board's remand. A December 2020 medical opinion was provided. The VA examiner determined that Zyrtec is systemic antihistamine medication used for skin itching for eczema. It is not like or similar to a corticosteroid or immunosuppressive drug. The VA examiner determined that Fluocinonide 0.05 percent cream is a topical steroid used to reduce inflammation of the skin and does not become systemic with use. It works by activating natural substances in the skin to reduce swelling, redness, and itching. The VA examiner determined that Eucerin cream is a topical moisturizer that does not become systemic with use. It is not like or similar to a corticosteroid or immunosuppressive drug. Prior to November 6, 2017, the Board finds that a rating in excess of 10 percent is not warranted. There is no evidence that more than 20 to 40 percent of the Veteran's total body or exposed areas were affected. There is also no evidence of systemic treatment. The December 2020 VA examiner determined that Eucerin and Fluocinonide are not systemic with use. Accordingly, the criteria for a 30 percent rating under DC 7806 prior to November 6, 2017 have not been met. From November 6, 2017, the Veteran is in receipt of a 60 percent rating, which is the maximum rating allowed for dermatitis or eczema under DC 7806. DC 7806 also provides that a veteran's eczema may be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. However, this portion of DC 7806 is not applicable in this case. VA examiners determined that there was scarring or disfigurement of the head, face, or neck. However, this finding was made in relation to the Veteran's alopecia, keloid on the ear, and left shoulder. Her keloid scar on ear and left shoulder scar were unrelated to her history of eczema. Her left shoulder scar and alopecia have separate ratings under DC 7805 and 7830, which are not currently on appeal before the Board. The assignment of separate compensable ratings for essentially the same disability (scarring of the head, face, or neck) would amount to pyramiding, which is prohibited. Additionally, in the November 2017 VAX she denied scarring from her eczema and when examined her eczema was limited to her right hand, forearm, right thigh, and left lower leg. The July 2015 VAX clearly indicated that the Veteran's eczema was limited to her right upper thigh area. Thus, a rating under DC 7800 is not applicable. The medical nor the lay evidence suggests that the Veteran had or has scarring in general such that DCs 7801, 7802, 7804, or 7805 are implicated. Thus, the Board concludes that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for eczema prior to November 6, 2017 and a rating in excess of 60 percent from November 6, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and both aspects of the claim must be denied. See 38 U.S.C. § 5107(b); see also, e.g., Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.