Citation Nr: 21041829 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-36 188 DATE: July 10, 2021 ORDER A compensable, 10 percent rating for contact dermatitis, distal index fingers of the bilateral hands is granted. REMANDED A compensable rating for rosacea prior to February 6, 2020; and a rating in excess of 30 percent since February 6, 2020 is remanded. A compensable rating for facial scars, residuals of treatment for basal cell carcinoma, prior to February 6, 2020; and a rating in excess of 10 percent since February 6, 2020 is remanded. FINDING OF FACT Resolving any doubt in the Veteran's favor, his contact dermatitis, distal index fingers of the bilateral hands exhibits extremely painful, dry, peeling skin. CONCLUSION OF LAW The criteria for a 10 percent rating for contact dermatitis, distal index fingers of the bilateral hands have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804, 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1983 to May 2007. This appeal arises from an April 2017 rating decision, denying compensable ratings for a facial scar, contact dermatitis and rosacea. The Veteran testified at a VA Central Office hearing in Washington, D.C. (Board hearing) in January 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. In May 2019, the Board remanded the case to the AOJ for additional development and consideration. The AOJ's April 2020 rating decision increased the Veteran's rosacea to 30 percent and facial scars to 10 percent, each effective from February 6, 2020. In August 2020, the Board again remanded the facial scar, contact dermatitis, rosacea and a total disability rating based on individual unemployability (TDIU), to the AOJ for additional development and consideration. Notably, in August 2020, the Board also denied entitlement to a compensable rating for scars of the left upper back, status post excision basal cell carcinoma. This additional issue was appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). The CAVC issued an April 2021 Order granting an April 2021 Joint Motion for Partial Remand, which vacated the Board's prior August 2020's denial of the compensable rating for scars of the left upper back, and remanded the matter to the Board. The issue of a compensable rating for scars of the left upper back is not presently before the Board. However, the Joint Motion for Partial Remand did not disturb the remanded issues in the August 2020 remand. During the pendency of the appeal, the Veteran and his representative submitted a written withdrawal of the TDIU issue, so that it is also not before the Board at this time. See January 2021 Veteran's representative statement and March 2021 Veteran's statement. The file is again before the Board for further appellate review. 1. A compensable rating for contact dermatitis, distal index fingers of the bilateral hands. The Veteran and his representative have asserted that the Veteran is entitled to a compensable rating for his service-connected contact dermatitis, distal index fingers of the bilateral hands. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since December 2015, which is one year before the December 2016 increased rating claim was filed. The Veteran's contact dermatitis, distal index fingers of the bilateral hands disability is currently rated at 0 percent under Diagnostic Code (DC) 7806, for dermatitis or eczema. 38C.F.R. §4.118 (skin diseases). 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. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. 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. Alternatively, the disability may be evaluated 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, 7815, 7816, 7821, 7822. For claims filed prior to August 13, 2018, as here, 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. 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. Alternatively, the disability may be rated 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. In this case, the February 2020 VA skin diseases examination recorded the Veteran's complaints and history of contact dermatitis of his hands, and indicated it was currently asymptomatic but also opined that when flare ups of hand dermatitis occur every few months, they affect approximately 1 percent of exposed body area (bilateral hands). The VA examination did not indicate if any specific medications and treatments, and any other potential residuals or functional impairments were due to the contact dermatitis. On remand, the Veteran received another VA examination in March 2020. The Veteran's disability picture essentially remained the same. During this examination, the VA examiner noted that the Veteran's current skin condition was diagnosed as contact dermatitis, manifesting as symptoms of peeling fingers. It was noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. The Veteran reported using "creams" for medication. However, the VA examiner noted no treatment with any medications for the past 12 months, including corticosteroids, antihistamines, retinoids, sympathomimetics, biologics, or any other medications. The examiner also noted no other treatments, procedures or symptoms, including phototherapy, photochemotherapy, PUVA, electron beam therapy, intensive light therapy, or any other treatment. During this examination, the examiner noted that the Veteran's total body area affected was less than 5 percent and the total exposed area was also less than 5 percent. At the outset, the Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned noncompensable disability rating reflects. The Veteran is competent to report observable symptoms, to include his lay statements of "very, very painful" dermatitis which affected his work (see Board hearing transcript, at page 10) and complaints of peeling fingers to the VA examiner; and such statements are also credible, and thus probative evidence in support of his claim. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In further support of his claim, the Board observes photographs showing dry, peeling skin on his hands. Although examination noted no functional impairment, after resolving any doubt in favor of the Veteran, the Board finds there is sufficient basis, in light of probative evidence of painful, dry, peeling skin, along with the Veteran's appellate contentions, to assign the minimally compensable rating of 10 percent for his dermatitis. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, the Veteran does not assert, and medical treatment records do not show, that his skin disorder of the fingers/hand more nearly approximates the criteria for an even higher 20 percent rating under any applicable skin rating criteria, either old or new. Notably, no higher rating of 20 percent is warranted under the rating criteria for DC 7801 or 7804, as it is not shown that the Veteran exhibits scarring that exceeds 12 square inches or that there at least three unstable or painful scars to warrant. Moreover, he does not warrant a 20 percent rating under the old or new DC 7806 rating criteria. Notably, there is no contention or evidence that his dermatitis involves at least 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 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. The assignment of a 10 percent rating, but no higher, is warranted. REASONS FOR REMAND 1. A compensable rating for rosacea prior to February 6, 2020 and a rating in excess of 30 percent since February 6, 2020. 2. A compensable rating for facial scars, residuals of treatment for basal cell carcinoma, prior to February 6, 2020 and a rating in excess of 10 percent since February 6, 2020. In August 2020, the Board remanded the increased rating claims for rosacea and facial scars, respectively, for additional medical comment, including (1) retrospective medical opinions on the severity of his rosacea and facial scars from December 2015 until February 6, 2020; and (2) comment on the comparative severity of the disability before and since the February 2020 VA examination. A December 2020 VA physician opined on the severity of the rosacea disability, noting, "Disability exam performed today noted rosacea involving less than 5% of the total body area, consistent with the severity reported on disability exam dated [February 2020]." However, a review of the concurrent VA scars examination report by this physician contains no relevant physical findings on the portion of the body or exposed area affected by rosacea. As such, it appears the December 2020 VA medical opinion is inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Another medical opinion is necessary on the severity of the Veteran's rosacea. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Further, the December 2020 VA physician did not appear to provide a retrospective medical opinion on the severity and functional impairment due to the Veteran's facial scars, as requested by the Board's August 2020 remand. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). It is also not clear if the December 2020 VA physician recognized that the facial scars manifestations should be assessed distinctly from the separately service-connected rosacea, such as the comment that, "There are no facial scars due to rosacea..." The Board must remand to ensure medical comment is provided on the Veteran's facial scars. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from a qualified VA clinician, different from a previous examiner, to determine the severity of the Veteran's rosacea prior to February 6, 2020, as necessary for evaluating the Veteran's disability under the rating criteria. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. After reviewing the record, the examiner should comment whether there were any increasing symptoms, treatment and medication, and functional impairment due to his rosacea in the time period from December 2015 until February 6, 2020. To the extent possible, the examiner should comment on the comparative severity of the disability before and since the February 2020 VA examination. A complete rationale should be provided for all opinions rendered. 2. Obtain a retrospective medical opinion from a qualified VA clinician, different from a previous examiner, to determine the severity of the Veteran's facial scars, residuals of treatment for basal cell carcinoma, prior to February 6, 2020, as necessary for evaluating the Veteran's disability under the rating criteria. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. After reviewing the record, the examiner should comment whether there were any increasing symptoms, treatment and medication, and functional impairment due to his facial scars in the time period from December 2015 until February 6, 2020. To the extent possible, the examiner should comment on the comparative severity of the disability before and since the February 2020 VA examination. A complete rationale should be provided for all opinions rendered. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.