Citation Nr: 22018298 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-52 433 DATE: March 28, 2022 ORDER More than a 10 percent initial rating for service-connected dermatitis (claimed as eczema) is denied. FINDING OF FACT The persuasive evidence of record is against finding the Veteran's service-connected skin conditions have caused rashes or lesions covering more than five percent of either exposed or total body area or required treatment with systemic therapies for more than six total weeks over the entire period on appeal, much less a single 12-month period. CONCLUSION OF LAW The criteria for more than a 10 percent initial rating for service-connected dermatitis (claimed as eczema) are not met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (Code) 7806 (2021); 38 C.F.R. § 4.118, Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1998 to August 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision. The Board initially granted a 10 percent rating in July 2019, but the United States Court of Appeals for Veterans Claims (Veterans Court) granted a Joint Motion for Partial Remand (JMPR) in January 2021 directing the Board to readjudicate the claim while giving adequate consideration to claims that treatment with topical betamethasone cream, triamcinolone cream, and ketoconazole shampoo are equivalent to systemic corticosteroids. The Board remanded in May 2021 for a medical opinion directly addressing those concerns. VA's duty to notify in this matter was satisfied by August 2010 and November 2013 letters, as well as in an August 2016 statement of the case (SOC) and August 2018 supplemental SOC (SSOC). VA has obtained the Veteran's service treatment records (STRs) and pertinent post-service treatment records. While the Veteran has not been examined in conjunction with this appeal, the Board notes that he failed to report to an August 2018 VA examination scheduled on his behalf and has not provided any explanation or requested a rescheduled examination, even after being informed of the consequences for not reporting under 38 C.F.R. § 3.655 in both the August 2018 SSOC and the July 2019 Board decision, which he appealed to the Court (and therefore is presumably aware of that decision's contents either personally or through his representatives). The prior remand sought a medical opinion assessing the questions regarding whether certain topical treatments are consistent with systemic therapies as contemplated by the rating criteria and an October 2021 opinion obtained on remand answers those questions in great detail and with a clear explanation, substantially complying with the prior remand directives. Crucially, the Veteran has had ample opportunity to respond to provide any reason for such failure, request a new examination, or allege other inadequate notice or development, but has not done so. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. More than a 10 percent initial rating for service-connected dermatitis (claimed as eczema) As the Veteran failed to report to the August 2018 VA examination and has not provided any reason or requested rescheduling, despite multiple opportunities to do so and ample notice of the consequences otherwise. Therefore, the Board finds that 38 C.F.R. § 3.655 requires an adjudication of this matter based on the evidence already of record. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran's skin disability is rated under Code 7806. Here, there are two different versions of the criteria for rating skin disabilities that may be applied, as those criteria were amended effective August 13, 2018 (during the pendency of this appeal). Prior to August 13, 2018, Code 7806 provided for a 10 percent rating when 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 is affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118 (2017). A 30 percent rating was assigned when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A maximum 60 percent rating was assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas is affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. Id. Under the new criteria effective August 13, 2018, the substantive requirements and corresponding ratings are largely unchanged. The revisions primarily reorganize several Codes (including 7806) to be rated uniformly under one General Rating Formula. The only significant difference is that the new criteria broaden the language describing "systemic therapy" to provide that the term includes, but is not limited to, "corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs." 38 C.F.R. § 4.118 (2021). In cases like this involving two different versions of the applicable rating criteria, the Board generally reviews both and applies that most favorable to the Veteran. However, as discussed further below, the persuasive evidence of record is against finding any mentions, references, or allegations suggesting any use of pertinent systemic therapies other than corticosteroids during the period on appeal and, therefore, the analysis here would be substantively identical under either criteria. To start, the Board notes the medical evidence of record is largely silent for any information that would allow for meaningful estimates of the proportions of total or exposed body areas affected by his dermatitis or eczema. At most, the Veteran has provided vague reports saying his rash has affected various body parts. Among the more specific reports in the record are a December 2013 statement indicating his rash is in the "entire" neck region and a September 2014 notice of disagreement (NOD) indicating flare-ups affect the "entire exposed neck area" in addition to unspecified portions of the upper back and antecubital area of the arms. Even just applying the most specific descriptions provided (i.e., the "entire" neck), the Board cannot determine without more specific measurements, photographs, or other reference points what percentage of total body area or exposed body area the "entire" neck region occupies. Online research indicates that the front and back of the head and neck is roughly nine percent of total body surface area, but there does not appear to be information allowing for similar estimates of what portion of the total body surface area the neck alone comprises. Even if there were, it is clear the Veteran's reports involve more than just the neck, and those reports are, again, relatively vague as to the extent of eczematous lesions. Notably, even the Veteran's September 2014 NOD only alleges that his claimed rash (which he said affected the neck, upper back, and arms) corresponded with a 10 percent rating (which he already has) based on affecting five percent of exposed areas. A June 2019 appellate brief repeats this assertion. Therefore, even if the Board were to accept the Veteran's personal estimates of record as uncontested fact, they would not support awarding more than a 10 percent rating. Therefore, this appeal will hinge instead on whether the Veteran has ever required systemic medication or treatment warranting more than a 10 percent rating. Specifically, under either version of the rating criteria, the key question here is whether his dermatitis or eczema has required six or more weeks of systemic therapies in a 12-month period. To that end, the Veteran alleges that his daily use of topical betamethasone, topical triamcinolone, and topical ketoconazole shampoo are equivalent to systemic corticosteroids and the Board obtained an October 2021 VA medical opinion to assess those allegations. That opinion explains in great detail that "general topical medication[s] have a low rate of absorption" and that "[a]bsorption must occur through all layers of the skin before entering into the circulation and must be in high enough amount to cause physiologic change before being considered a systemic therapy." The consulting provider also noted that topical corticosteroids are well studied and that medical literature indicates "the top layer, the stratum corneum, is the rate-limiting step to absorption" but that "some area[s] of thinner skin (i.e., axillae, groin) [as well as mucous membranes] will better absorb [corticosteroids]." Moreover, they noted factors affecting drug absorption and the potential for systemic absorption "include age (young absorb more), body site treated (thin and mucosa absorb more), amount of steroid applied, potency of drug (high absorbs more), vehicle of drug (propylene glycol, ethanol absorb better), occlusivity of vehicle (ointment absorbs better than cream), duration of therapy, skin disease treated (broken skin will absorb more), frequency of application, hepatic and renal disease, [and] hydration of the skin (more hydration equals more absorption)." With that foundation, the consulting provider opined that it would be "unreasonable to classify this patient's use of betamethasone and triamcinolone creams as systemic," as "[t]hey were applied twice daily to the affected areas in reasonable amounts for a reasonable amount of time." Similarly, "[k]etoconazole cream is well studied and does not have systemic absorption when applied to intact skin." Moreover, given the Veteran used ketoconazole shampoo and it would be rinsed off (i.e., short contact), "there is even less concern." Given the thoroughness of that opinion, the consulting provider's medical training, and their clear identification of the key factors underlying the ultimate findings (i.e., that frequency, amount, and duration of application were not enough to cause absorption through all layers of the skin such that the drugs entered into circulation), the Board finds it highly probative and, absent similarly competent evidence to the contrary, persuasive evidence that the Veteran's use of topical betamethasone, topical triamcinolone, and ketoconazole shampoo are not equivalent to systemic therapies as contemplated by both versions of the rating criteria. Notably, a review of the treatment records shows that these topical treatments have been prescribed at low potencies (two or fewer percent suspensions). Still, there is evidence in the record that the Veteran did receive treatment through systemic corticosteroids. In February 2015, the Veteran received intramuscular administration of Depomedrol (i.e., an injection of a drug that is listed as a Glucocorticoid, similar to Prednisone) that helped his eczema temporarily. Records later that month show he was prescribed a course of Prednisone. However, there is no indication or allegation that he ever received additional shots or other form of Depomedrol, and pictures the Veteran later submitted himself show his Prednisone was prescribed for only a six day course. Nothing else in the medical records or lay evidence suggests repeat prescriptions of Prednisone or any other systemic or immunosuppressive therapy was prescribed or even indicated at any time during the period on appeal. In fact, even the Veteran himself only specifically alleges less than six weeks of systemic therapy. Private and VA records in the file indicate the only other dermatological treatment has been topical hydrocortisone (an over-the-counter ointment) at similar strengths as his betamethasone and triamcinolone. Therefore, it appears the Veteran's dermatitis or eczema only required systemic therapies for less than six weeks over the course of the past decade, which is much less frequent than the six or more weeks in one 12-month period required for a higher rating. Consequently, the Board finds the persuasive evidence of record is against finding any basis for awarding more than a 10 percent rating under either the old or new rating criteria for Code 7806 at any time on appeal. Thus, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.