Citation Nr: 21041314 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-58 970 DATE: July 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for sebopsoriasis and spongiotic dermatitis with eosinophils (previously dermatitis) is denied. FINDING OF FACT The Veteran's sebopsoriasis and spongiotic dermatitis with eosinophils is manifested by character lesions involving at least 5 percent, but less than 20 percent, of the entire body affected, without systemic therapy. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for sebopsoriasis and spongiotic dermatitis with eosinophils have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806, 7816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from January 2007 to August 2011. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previous before the Board in January 2019. In its decision, the Board remanded the issue of an increased initial rating for dermatitis. Specifically, the Board found the July 2017 examination inadequate for adjudicative purposes. A post-remand VA examination was afforded to the Veteran on April 2020. The Board finds that the RO substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes the time that the Veteran has devoted to this appeals process and appreciates her patience. The Board notes that when this matter first appeared before the Board in January 2019, the Veteran was currently rated at a noncompensable rating for her service-connected dermatitis. A June 2020 rating decision increased the Veteran's rating to 10 percent effective April 12, 2016. However, this was not a grant of the maximum benefit available by law, therefore the appeal continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2015, the Veteran's attorney withdrew representation prior to certification of the appeal to the Board. Prior to certification of an appeal to the Board, a claimant's representative may withdraw from representation before an agency of original jurisdiction at any time, "if such withdrawal would not adversely impact the claimant's interest." 38 C.F.R. §§ 14.631, 20.6. The Board finds that there is no adverse impact to the Veteran's interest, and the attorney withdrew representation with adequate notice and time for the Veteran to obtain new representation, which the Veteran has not done. Rating Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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 DC 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, DC 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 DCs 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. Entitlement to an initial rating in excess of 10 percent for sebopsoriasis and spongiotic dermatitis with eosinophils (previously dermatitis), effective April 12, 2016. The Veteran contends that her service-connected sebopsoriasis and spongiotic dermatitis with eosinophils (previously dermatitis) is more disabling than its current rating. She is currently assigned a 10 percent rating under 38 C.F.R. § 4.118, DC 7816. The Diagnostic Code instructs the rater to rate the disability as dermatitis (DC 7806), or psoriasis (DC 7816), depending on the predominant disability. The Board notes that the Veteran's condition, prior to the June 2020 Rating Decision, was listed as dermatitis and rated under DC 7806. However, the June 2020 Rating Decision corrected her condition to "sebopsoriasis and spongiotic dermatitis with eosinophils" and rated her according to DC 7816. However, the predominant disability found in the Veteran's condition is dermatitis; as such it will be rated under DC 7806. In doing so, the Board notes that utilizing DC 7806 instead of DC 7816, is of no consequence to the Veteran because both DCs are evaluated under the General Rating Formula for the Skin. The Board will consider all the Veteran's symptoms when utilizing the General Rating Formula for the skin and determining the proper evaluation for the Veteran. Turning to the evidence, the Veteran was afforded a VA examination via video telehealth in connection with her claim in April 2020. The examiner noted a diagnosis of sebopsoriasis and spongiotic dermatitis with eosinophils. The examiner noted that the combined percentage affecting the total body of both conditions is 5 to 10 percent. The combined percentage affecting exposed areas was less than 5 percent. The examiner noted that the Veteran has been treated with medication in the past 12 months for her skin condition. For treatment, the examiner noted that the Veteran used corticosteroids or other immunosuppressive medications. This treatment was used topically, on a constant or near-constant basis. Additionally, the Veteran uses salicylic acid shampoo and ketoconazole when she washes her hair. It is also noted that the Veteran recently used red light therapy as another treatment. The Veteran reported that her condition affected her "everywhere" last summer. However, during the exam her condition was "not that bad". During a flare up, it is noted that the Veteran must fully cover herself when she is out in public. Additionally, she cannot go to the beach or church. She notes that the skin condition has affected her sex life. She notes that her skin feels like sandpaper. The examiner noted that the Veteran's condition worsens from May to late fall, then lessens, however never completely resolving. The examiner noted that the percentage of the body that is affected by the skin condition during a flare-up is about 5 to 10 percent. The examiner noted that the Veteran requires constant treatment for management of her condition. An August 2016 VA examination noted that the Veteran has seborrheic dermatitis (however the April 2020 examiner corrected the diagnosis based on biopsy results). The August 2016 examiner noted that the Veteran is treated with topical corticosteroids on a constant or near-constant basis for her skin condition. The examiner noted that the total exposed body area affected was less than 5 percent. Review of the Veteran's VA treatment records confirm the Veteran's skin condition. A June 2012 Preventative Physical Examination notes concerns of dermatitis on the face and feet. A January 2017 Women's Health Note reveal rashes on the torso, abdomen, and chest. A February 2017 Dermatology Consult notes new diffuse rash on the trunk with small red plaques and papules and slight scale. A note of scalp dermatitis was also noted. A November 2018 Women's Health Note revealed chronically itchy and scaly scalp. Additionally, a biopsy of the left abdomen revealed spongiotic dermatitis with eosinophils. After applying the pre-August 13, 2018 regulation to both periods on appeal (prior to August 13, 2018 and from August 13, 2018 forward), the Board finds the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018 regulations. This is because the Veteran's skin condition did not more nearly approximate more than 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. Nor does her skin condition reveal 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. As stated above, the April 2020 examiner noted that the Veteran used corticosteroids and other immunosuppressive medications on a constant or near-constant basis. However, the use of corticosteroids was solely topically. The Board notes that the Federal Circuit pointed out 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, however that is not the case here. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Board is aware that the Veteran is prescribed desonide, triamcinolone, derma Smoothe, fluocinonide, fluocinolone, and clobetasol; however these medications are instructed to be used topically over the affected area of the skin. Here, there is no indication in the record that the Veteran's medication was used other than locally to treat her skin condition, and the Veteran has not alleged that she used systemic therapy, to include oral medications to treat her condition. It is noted that the Veteran's treatment included red light therapy, however the total duration of this treatment was less than 6 weeks, therefore an analysis of whether this constitutes systemic therapy is not needed. The Board has also considered the application of the new diagnostic criteria from August 13, 2018 forward, but finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the new regulations as well. This is because the Veteran's skin condition did not more nearly approximate 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. Nor does her skin condition reveal 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. The new 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. Here, the evidence of record shows that the Veteran's treatment is topical because it is administered through the skin. As such, is not systemic therapy. It is noted that the Veteran's treatment included red light therapy, however the total duration of this treatment was less than 6 weeks. It is noted that the new regulation applied to the second period on appeal (on and after August 13, 2018) is unfavorable to the Veteran. The Board notes that in reaching its conclusion, it applied the old regulation to both periods of appeal (before August 13, 2018 and from August 13, 2018 forward) to attempt to reach a favorable outcome for the Veteran, unfortunately neither old nor new regulations permit a rating in excess of 10 percent for the Veteran during any periods on appeal. The Board has considered whether any other DCs related to disabilities of the skin would provide 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 sebopsoriasis and spongiotic dermatitis with eosinophils. 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. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.