Citation Nr: 22010004 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 16-18 994 DATE: February 22, 2022 ORDER Entitlement to an initial compensable rating for eczema prior to January 25, 2020, and a rating in excess of 10 percent since is denied. FINDINGS OF FACT 1. Prior to January 25, 2020, the Veteran's diagnosed notalgia paresthetica does not cover at least 5 percent of the total body area or exposed area. 2. Since to January 25, 2020, the Veteran's diagnosed notalgia paresthetica covers more than 5 percent but less than 20 percent of the total body area or exposed area. CONCLUSIONS OF LAW 1. Prior to January 25, 2020, the criteria for an initial compensable disability rating for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7899-7806. 2. Since January 25, 2020, the criteria for a rating in excess of 10 percent for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2001 to March 2001 and from August 2008 to September 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 and April 2021, the Board remanded the Veteran's claim for additional development. The matter has been returned to the Board for review. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2021). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2021). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's skin disability, diagnosed as notalgia paresthetica, is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. Here, the use of Diagnostic Code 7899-7806 reflects that there is no diagnostic code specifically applicable to the Veteran's skin disease, and that this disability is rated by analogy to dermatitis or eczema under Diagnostic Code 7806. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury). By way of history, the Veteran was granted service connection for this disability in a June 2013 rating decision, and assigned an initial rating of 0 percent, effective from September 21, 2011. The Veteran appealed the initial rating assigned for this disability. During the pendency of the appeal, the Regional Office (RO) increased the rating for the Veteran's skin disability to 10 percent, effective from January 25, 2020. See November 2021 Rating Decision. During the pendency of this appeal, the Schedule for Rating Disabilities that addresses diagnostic codes 7801, 7802, 7805, and 7806 has been amended, which went into effect on August 13, 2018, 83 Fed. Reg. 32592 (July 13, 2018). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran's scars under both the old and new criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will discuss both periods of regulations in order to determine if a compensable rating is warranted under the applicable scar criteria during that time period. Under the previous criteria, a 0 percent evaluation is available for dermatitis under 38 C.F.R. § 4.118, Diagnostic Code 7806 when there is less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted when there is at least five percent, but less than 20 percent of the entire body, or at least five 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. For the Veteran to be entitled to the next available rating of 30 percent under Diagnostic Code 7806, the evidence must show dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Under the amended criteria, dermatitis rated under 38 C.F.R. § 4.118, Diagnostic Code 7806, is evaluated under the General Rating Formula for Skin. A 0 percent evaluation is available when no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than five percent of the entire body affected; or characteristic lesions involving less than five percent of exposed areas affected. A 10 percent rating is warranted when there is at least one of the following: characteristic lesions involving at least five percent, but less than 20 percent of the entire body affected; or at least five 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 six weeks over the past 12-month period. 38 C.F.R. § 4.118 defines systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. A 30 percent rating requires at least one of the following (1) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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. 38 C.F.R. § 4.118. Under both sets of criteria, dermatitis can also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805). However, there is no evidence the Veteran's skin disability has resulted in disfigurement of the head, face, and neck, so further consideration of Diagnostic code 7800 is not warranted. There is also no indication, as discussed below, that the Veteran's skin disability has resulted in scarring. Thus, consideration of Diagnostic Codes 7801 to 7805 is not warranted. In support of his claim for service connection, the Veteran was scheduled for a VA examination in February 2013. During the examination, a diagnosis of eczema is provided. The Veteran reports he noticed a small patch on the right shoulder blade in 2010 and was treated with an antifungal cream, which did not resolve the patch. The examiner notes no scarring or disfigurement; and, no benign or malignant neoplasms. The patch on the right shoulder was found to be approximately 9 centimeters (cm) by 5 cm, with a few scattered eczema lesions to the abdomen and back. The examiner describes the areas as mild erythema and rough, slightly raised feeling. There is no deformity to underlying tissue, and no scarring. The examiner notes that the Veteran has used a topical medication for 6 weeks or more in the past 12 months, but not on a constant basis. There was no evidence of either debilitating or non-debilitating episodes. It was found that the eczema covers less than 5 percent of the total body area and none of the exposed body area. There were no other physical findings noted on examination. Finally, the examiner determined there was no functional impact as a result of the Veteran's skin disability on her ability to work. The accompanying April 2013 VA medical opinion also indicates the Veteran uses clobetasol cream intermittently. The Veteran was reexamined by VA in January 2016 in connection with the appeal for a higher initial rating. At that time, the examiner provides a diagnosis of eczema that is unresponsive to topical medications. The Veteran does not report the use of topical medications within the past 12 months, or any other procedures. There was no evidence of either debilitating or non-debilitating episodes. Upon examination, the examiner notes there is no evidence of scarring or disfigurement. It was found that the eczema covers less than 5 percent of the total body area, and 0 percent of the exposed body area. The patch on the upper back is measuring 17 cm by 7 cm, and described as lichenified, erythematous, and scaly. There were no other physical findings noted on examination. Finally, the examiner determines there was no functional impact as a result of the Veteran's skin disability on her ability to work. The Veteran was again reexamined by VA in January 2020 in connection with the appeal for a higher initial rating. At that time, the examiner provides a diagnosis of notalgia paresthetica. The Veteran does not report the use of topical medications within the past 12 months, or any other procedures. There was no evidence of either debilitating or non-debilitating episodes. Upon examination, the examiner notes there is no evidence of scarring or disfigurement. It was found that the skin disability covers 5 percent but less than 20 percent of the total body area, and 0 percent of the exposed body area. There examiner indicates the patch on the right shoulder is discolored, rough, and has a brown hyperpigmented area on the right shoulder. However, there were no other visible characteristic lesions at the time of the examination. Further, there are no other physical findings noted on examination. The examiner notes the Veteran's report that the skin disability disturbs his focus and can be uncomfortable at times due to the intent itching. Finally, as to the change in diagnosis, the examiner clarifies that the diagnosis of notalgia paresthetica is not a progression of eczema, which was incorrectly diagnosed. The examiner also states that topical treatments do not work to treat or control the intense pruritis. In an accompanying January 2020 VA medical opinion, the examiner states that a review of the medical record does not indicate presence of an eczema condition. Further, the physical examination does reveal an hyperpigmented area on the right shoulder, which is the diagnosed notalgia paresthetica. Finally, the Veteran denies any current use of an immunosuppressive or topical steroid cream. The Veteran was most recently examined by VA in November 2021. At that time, the examiner again provides a diagnosis of notalgia paresthetica, noting that eczema was previously diagnosed in error. The Veteran does not report the use of topical medications within the past 12 months, or any other procedures. There was no evidence of either debilitating or non-debilitating episodes. Upon examination, the examiner notes there is no evidence of scarring or disfigurement. The examiner concludes that the disability covers 5 percent but less than 20 percent of the total body area, and 0 percent of the exposed body area. It was found that the patch on the right shoulder blade is discolored and intensely pruritic, and measures 22 by 8.5 cm. The examiner states that the cause of the itch in notalgia paresthetica is due to the compression of spinal nerves by bones or muscles. However, there were no other visible characteristic lesions at the time of the examination. Further, there are no other physical findings noted on examination. The examiner notes the Veteran's report that the skin disability can result in intense itching. In the November 2021 VA medical opinion, the examiner states that, as to the change in diagnosis, notalgia paresthetica is not a progression of eczema, which was incorrectly diagnosed. The examiner also states that topical treatments do not work to treat or control the intense pruritis. The Veteran's June 2018 private treatment records show the notalgia paresthetica is described as measuring 17 cm by 6 cm. The treating physician notes that it is an ill-defined, hyperpigmented lichenified, that is a slightly indurated patch along the right upper back. Further, the use of topical creams is noted. Period Prior to January 25, 2020 Here, the Board finds that the Veteran is not entitled to an initial compensable rating prior to January 25, 2020, pursuant to DC 7806 (version in effect either prior to or since August 13, 2018). Specifically, the noted skin disability has not been found to cover at least 5 percent of the total body area affected or the exposed area. See again February 2013 and January 2016 VA Examination reports; see also June 2018 Private Treatment Records. Period Since January 25, 2020 Similarly, the Veteran is not entitled to a rating in excess of 10 percent since January 25, 2020, pursuant to DC 7806 (version in effect either prior to or since August 13, 2018). Specifically, the probative evidence of record shows that the diagnosed skin disability results in the involvement of at least five percent but less than 20 percent of the total body area affected. See January 2020 and November 2021 VA Examinations. However, the Veteran is not entitled to the next higher 30 percent rating under the prior criteria (so in effect prior to August 13, 2018) as the evidence does not show the skin disability covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Similarly, in order to be award a 30 percent rating under the revised criteria, the Veteran would have to show characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy, or other immunosuppressive drugs required for a total duration of 6 weeks or more. As noted above, the Veteran has only used topical medications intermittently throughout the entire appeal and has never been reported to have more than 20 percent of there the entire body or exposed areas affected. The Board is sympathetic to the concerns that have been voiced that include the Veteran's statements that he believes he is entitled to higher ratings, although specifical allegations have not been put forth. While the Veteran is competent to report his dermatological symptoms, as well as his skin treatment, he is not competent to make the requisite clinical findings under the relevant rating criteria. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds the objective, competent medical evidence discussed above - specifically the VA examination reports and treatment records - more probative than the Veteran's lay statements in establishing his specific level of symptomatology and impairment under Diagnostic Code 7806. (Continued on the next page) Therefore, the Board finds that the Veteran is not entitled to an initial compensable rating for the period prior to January 25, 2020, and a rating in excess of 10 percent thereafter. Accordingly, as the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.