Citation Nr: 21041001 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-11 228 DATE: July 7, 2021 ORDER Entitlement to an increased disability rating of 60 percent for vitiligo is granted. FINDING OF FACT Throughout the period on appeal, the evidence reflects the Veteran was treated with a systemic therapy such as a corticosteroid or other immunosuppressive drugs constantly or near constantly for a period of 12 months and that continuation of the use of such beyond 12 months was contraindicated and resulted in a worsening of her overall disability picture. CONCLUSION OF LAW The criteria for a 60 percent disability rating for vitiligo have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1991 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge during a Board virtual hearing. 1. Entitlement to a 60 percent disability rating for vitiligo is granted. The Veteran contends she is entitled to a rating in excess of 30 percent for her vitiligo because she believes it covers more than 40 percent of her body. The Board notes that 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, 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 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. As the Veteran's claim was received in October 2015, her claim can be considered under the former and the revised regulations. Upon review of the evidence, the Board finds that the former regulation that in effect prior to August 13, 2018 is most favorable to the Veteran. In this regard, the Board finds that she is entitled to a disability rating of 60 percent for her vitiligo disability. Here, the evidence of record demonstrates that her predominant disability is vitiligo which covers her bilateral periorbital area, hands, wrists, feet, shoulders, underarms, hips, and groin. See April 2016 and February 2018 VA examinations. Accordingly, her vitiligo disability is rated under Diagnostic Code 7806, for dermatitis or eczema A review of a September 2014 VA dermatology consultation reflects she reported worsening of her vitiligo and a discussion of treatments to include low potency topical corticosteroids and topical calcineurin inhibitors such as tacrolimus was reviewed with the Veteran. During an April 2016 VA treatment records, she continued to report increased spreading of her vitiligo. Upon examination, the VA doctor noted there was progression of her vitiligo on her hands which were initially spotty but became confluence extending to the distal arms. On April 2016, she was provided with a VA examination which reflects she was treated with topical corticosteroids and other topical medication for a duration of constant to near constant in the past 12 months. An examination of her skin showed her vitiligo disability covered 20 to 40 percent of her total body area and exposed area. The VA examiner noted her vitiligo affected her bilateral periorbital area, hands, wrist, feet, shoulders, underarms, hips, and groin. In a February 2018 VA examination, the Veteran reported an increased spreading of her vitiligo on her face, bilateral dorsal hands, bilateral volar wrists into mid forearms, and on her dorsal feet. The VA examiner further noted that new areas included her anterior thorax, upper back, and heels. Her vitiligo was also seen on her bilateral elbows, popliteal space of her knees, groin, and hip. Upon examination, the VA examiner reported her vitiligo covered 20 to 40 percent of her total body and exposed area. The VA examiner also endorsed the Veteran was not being treated with any type of medications, topical or systemic. However, in the remarks section of the VA examination, the VA examiner noted her VA provider prescribed her topical steroids and topical tacrolimus which was discontinued since the last VA examination due to its ineffectiveness; concerns for thinning the skin was also raised. It was further noted that she tried a form of light therapy several years ago for about three months but did not see any improvements. During an August 2020 Board hearing, the Veteran testified that she tried using corticosteroid cream but that it only made her hands itch and rash. She states she could not keep the medication on her hands long enough for the medication to be effective and after several years the medication was ineffective. Her current regime now consists of preventative care such as staying out of the sun. She also testified that her condition cannot be treated with corticosteroids or immunosuppressive drugs. Upon consideration of the medical evidence during the period on appeal and the regulations prior to August 13, 2018, the Board finds that the evidence is at least in equipoise as to whether she was treated with systemic therapy such as corticosteroids or immunosuppressive drugs. Specifically, during the April 2016 VA examination, the VA examiner noted she was being treated with topical steroids and other topical medication, but the VA examiner did not identify what type of topical treatment she was using for her vitiligo. However, in the February 2018 VA examination, the VA examiner notes that prior to the last VA examination, the April 2016 VA examination, the Veteran was prescribed topical steroids and topical tacrolimus which had been discontinued since the April 2016 VA examination. According to medlineplus.gov, tacrolimus is a type of topical calcineurin inhibitors which works by stopping the immune system from producing substances that may cause eczema. In this regard, the Board finds that the Veteran's topical tacrolimus can be considered a systemic therapy because it is a topical ointment that affects the body as a whole in treating a veteran's skin condition such that it weakens the body's immune system. The medication is also an immunosuppressive drug. Thus, upon consideration of the April 2016 and February 2018 VA examination, it can be inferred that the Veteran was treated with the topical steroids and tacrolimus for her vitiligo constantly or near constant for the past 12 months during the April 2016 VA examination. The Board acknowledge that the Veteran submitted a private disability benefit questionnaire in October 2020. However, the Board finds the private disability benefit questionnaire is not consistent with the Veteran's overall treatment for her vitiligo throughout the period on appeal. As such, the Board assigns little probative weight to the October 2020 private disability benefit questionnaire. The Board has further considered whether she is entitled to a higher disability rating under DC 7800. However, the evidence fails to show that her vitiligo disability results in visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes(including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. As such, a higher rating of 80 percent is not warranted. (Continued on the next page) In resolving all doubts in favor of the Veteran, the Board finds that the evidence is in relevant equipoise and the maximum rating of 60 percent rating under DC 7806 for her vitiligo disability is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.