Citation Nr: 21040690 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-63 720 DATE: July 6, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral leg eczema (hereinafter skin disability) is denied. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome prior to June 16, 2015, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. The Veteran's skin disability manifest by topical therapy and characteristic lesions involving less than 5 percent of the exposed areas affected during a flare-up. 2. The Veteran's left carpal tunnel syndrome manifest by no more than mild incomplete paralysis prior to June 16, 2015, and moderate incomplete paralysis of the minor extremity thereafter. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. The criteria for entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome prior to June 16, 2015, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to September 2014. This matter was previously before the Board of Veterans' Appeals (Board) in November 2018, and was remanded for further development, which has been completed. The Board notes that entitlement to service connection for sinusitis was granted during the pendency of appeal in a July 2020 rating decision. As this represents a full grant of benefits sought on appeal, that issue is no longer before the Board. The July 2020 rating decision also increased the evaluation of left carpal tunnel syndrome to 20 percent disabling, effective November 2, 2016. However, as this does not represent a full grant of benefits sought on appeal, the issue of entitlement to an increased initial rating for left carpal tunnel syndrome is still before the Board. Lastly, the Board observes that the Veteran is not represented at this time. Increased Rating 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 a Diagnostic Code. 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 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 1. Entitlement to an initial rating in excess of 10 percent for bilateral leg eczema The Veteran contends that she is entitled to a higher rating because her skin disability covers more than 20 percent of her body. See November 2016 VA Form 9. The Veteran's skin disability is rated under Diagnostic Code 7806, for bilateral leg 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. 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. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is eczema of the bilateral legs. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran's skin disability does not more nearly approximate 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. The Veteran underwent a VA examination for her skin disability in December 2016. Currently, the Veteran's eczema is not present with 0 percent of the total body area and 0 percent of the exposed body area affected. However, the Veteran described that her eczema would reappear during an outbreak. The Veteran described an outbreak lasting about two weeks and with one or so lesions. As for treatment, the Veteran uses hydrophor topical ointment (a moisturizer) for a duration of six weeks or more, but not constant. Hydrophor topical ointment is not considered as systemic therapy affects the body as a whole and is not similar to a corticosteroid or other immunosuppressive drug. Overall, the VA examiner noted that the Veteran's condition is currently controlled, with no lesions present on examination. Furthermore, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran's skin disability does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The December 2016 VA examination showed the Veteran's eczema is not present and is being treated with hydrophor topical ointment. The 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. Furthermore, even considering when the Veteran has an outbreak, the few lesions the Veteran experiences would not involve more than 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected. The Board acknowledges that the Veteran believes her skin disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include lesions on her legs during an outbreak and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, medical treatment records do not show that the Veteran's disability more nearly approximates the criteria in the next higher rating. 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 she would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of a rating in excess of 10 percent for a skin disability. 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 an initial rating in excess of 10 percent for left carpal tunnel syndrome prior to June 16, 2015, and 20 percent thereafter The Veteran contends that she is entitled to a higher rating for her left carpal tunnel syndrome and nerve damage because it is at least at the moderate level of impairment with tingling, numbness, and moderate pain that interferes with the functional ability of her hand. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). A review of the evidence shows that the Veteran received a peripheral nerves examination in August 2014. The examiner noted the Veteran was diagnosed with left carpal tunnel syndrome in 2013. It was noted that the Veteran is right-hand dominant. The examiner found mild intermittent pain as a symptom attributable to a nerve condition of the left upper extremity. The Veteran also tested positive for Phalen's sign and Tinel's sign in the left upper extremity of the median nerve. Mild incomplete paralysis was shown for the left upper extremity of the median nerve. In June 2015, the Veteran first noted that her nerve damage for carpal tunnel syndrome was at least at the moderate level of impairment with tingling, numbness, and moderate pain that interferes with the functional ability of her hand. See June 16, 2015, VA Form 21-0958, Notice of Disagreement. The Veteran was afforded another VA examination in September 2019. The examiner noted symptoms attributable to a nerve condition of the left upper extremity, to include moderate constant and intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was noted as abnormal for grip. Moderate incomplete paralysis was shown for the left upper extremity of the median nerve. A July 2020 rating decision increased the evaluation of left carpal tunnel syndrome to 20 percent disabling, effective November 2, 2016, the date of the VA Form 9 that stated moderate symptoms were present. The Board finds that the lay testimony of the Veteran shows she first reported moderate symptoms in a June 16, 2015, Notice of Disagreement. Therefore, it is factually ascertainable that the Veteran's moderate impairment of her left carpal tunnel syndrome began on June 16, 2015. Based on the above, the Board finds that the disability is primarily manifest by mild incomplete paralysis prior to June 16, 2015, and moderate incomplete paralysis thereafter. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by severe incomplete paralysis to warrant a higher disability rating. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. (Continued on the next page) Nothing above suggests that the Veteran is not having a problem with these conditions. The only question is the degree of the problem based on the criteria cited above. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for left carpal tunnel syndrome prior to June 16, 2015, and 20 percent thereafter. 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.