Citation Nr: 22010835 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-34 293 DATE: February 24, 2022 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for bilateral hand eczema dyshydrosis is granted. FINDING OF FACT Throughout the rating period on appeal, the Veteran's bilateral hand eczema dyshydrosis has required systemic therapy for a total duration of 6 weeks or more per 12-month period, but not constantly. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a 30 percent initial disability rating, but no higher, for bilateral hand eczema dyshydrosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 2002 to August 2010. This matter comes before the Board of veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in January 2011. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a March 2018 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. This matter was previously remanded by the Board in August 2018. In a July 2021 decision, the Board, in relevant part, granted a 10 percent rating for bilateral hand eczema dyshydrosis for the period from March 27, 2018. The Board remanded the issue of entitlement to an initial compensable rating, and a rating in excess of 10 percent for the period from March 27, 2018 for further development. Following certification of this appeal, the RO granted service connection for right shoulder rotator cuff bursitis and tendonitis in a September 2021 rating decision. The grant of service connection constitutes a full award of benefits sought on appeal with respect to the claim of service connection for a right shoulder disability. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with respect to the initial rating or effective date assigned. Id. (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, that issue is not in appellate status at this juncture. Entitlement to an initial compensable rating, and a rating in excess of 10 percent for the period from March 27, 2018, for bilateral hand eczema dyshydrosis Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's bilateral hand eczema has been assigned a noncompensable initial rating from August 26, 2010, and a 10 percent rating for the period from March 27, 2018, under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that on July 13, 2018, VA published in the Federal Register a final rule amending the Schedule for Rating Disabilities. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824. VA's intent is that the 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 appellant will be applied. For the purposes of this appeal, the General Rating Formula differs from the previous version of Diagnostic Code 7086 only to the extent that it clarifies that systemic therapy includes, but is not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. Under both the General Rating Formula and the previous rating criteria for Diagnostic Code 7806, a noncompensable rating is assigned for eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed body areas, or when the disability requires no more than topical therapy over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent disability rating is warranted for eczema affecting 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 body areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs 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 if the dermatitis or eczema affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed body areas; or requires systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. Finally, a 60 percent rating is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed body areas; or requiring constant or near-constant systemic therapy during the past 12-month period. Id. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit held that 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. The Veteran underwent a VA examination for his bilateral hand eczema dyshydrosis in September 2010. He reported to the examiner that he had been treating his eczema with hydrocortisone, a topical corticosteroid, once daily for months. He denied using UVB, intensive light therapy, PUVA, or electron beam therapy for his eczema. The examiner noted that the Veteran's skin was clear of rashes and lesions at the time of the examination. The Veteran underwent another VA examination in March 2021. He reported to the examiner that he was taking topical fluocinonide and hydrocortisone, as well as cetirizine, an oral antihistamine, for 6 weeks or more, but not constantly, over the past 12-month period. The examiner noted that the Veteran's eczema covered at least 5 percent, but less than 20 percent of his total body area and exposed body area. The Board remanded this issue in July 2021 to obtain an addendum medical opinion addressing whether the Veteran's use of hydrocortisone constitutes systemic therapy. The VA examiner who conducted the March 2021 examination provided such an opinion in August 2021. The examiner stated that hydrocortisone's systemic absorption varies with application area and site, occlusion, and patient-specific factors. He indicated that the Veteran reported chronic use of topical hydrocortisone but that the compliance was unknown. The examiner stated that it appears that the Veteran was prescribed hydrocortisone in December 2018; therefore, he opined that, from December 2018, the hydrocortisone likely had systemic effects on the Veteran, though he used the medication on and off. In another addendum opinion issued in September 2021, the examiner stated that, at the time of the September 2010 examination, 0 percent of the Veteran's body area was affected by his eczema, because the examiner noted that his skin was clear of rash or lesions. After considering the evidence of record, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's bilateral hand eczema dyshydrosis for the entire rating period on appeal, or from August 26, 2010. In this regard, the evidence demonstrates that his eczema has required the use of hydrocortisone for a duration of 6 weeks or more, per 12-month period, but not constantly, throughout the period on appeal. According to the August 2021 addendum medical opinion, the hydrocortisone likely had a systemic effect. Therefore, the Veteran's use of hydrocortisone constitutes systemic therapy. See Burton, 30 Vet. App. at 291. The Board notes that the examiner only provided an opinion that the use of hydrocortisone constitutes systemic therapy for the period beginning in December 2018. However, his assignment of a date appears to be based solely on his statement that "[i]t appears that he was prescribed hydrocortisone on 12/28/2018." This finding is erroneous, as the Veteran reported use of hydrocortisone in his September 2010 examination and his VA treatment records show a hydrocortisone cream prescription since at least as early as September 2011. The examiner gave no indication that the Veteran's preexisting use of hydrocortisone suddenly started having a systemic effect in December 2018; rather, he provided a beginning date of December 2018 based on the erroneous belief that he was not prescribed hydrocortisone prior to December 2018. The evidence shows that the Veteran has used hydrocortisone for his bilateral hand eczema dyshydrosis for more than 6 weeks per 12-month period, but not constantly, throughout the rating period on appeal. The August 2021 addendum medical opinion clarified that the use of hydrocortisone had a systemic effect on the Veteran. Therefore, the criteria for a 30 percent initial disability rating have been met. 38 C.F.R. § 4.118, Diagnostic Code 7806. A higher disability rating of 60 percent is not warranted based on the evidence of record. In this regard, there is no evidence establishing that the Veteran's eczema dyshydrosis affects more than 40 percent of his entire or exposed body area, and the evidence does not demonstrate that he required constant or near-constant systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The March 2021 examiner stated that the Veteran's eczema covers at least 5 percent, but less than 20 percent, of his total and exposed body area and that he has used hydrocortisone for 6 weeks or more, but not constantly, over the past 12-month period. Therefore, a 30 percent rating, but no higher, is warranted for the Veteran's bilateral hand dyshydrosis. Id. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.