Citation Nr: 22037745 Decision Date: 06/30/22 Archive Date: 06/30/22 DOCKET NO. 18-02 454 DATE: June 30, 2022 ORDER Entitlement to a compensable disability rating prior to December 17, 2021, and in excess of 10 percent thereafter for service-connected eczema is denied. FINDINGS OF FACT 1. Prior to December 17, 2021, the Veteran's service-connected eczema was manifested by characteristic lesions involving less than 5 percent of the entire body or by intermittent systemic therapy for a total duration of less than six weeks during the prior 12 month period. 2. From December 17, 2021, the Veteran's service-connected eczema has not been manifested by characteristic lesions involving 20 to 40 percent of the exposed areas affected, or systemic therapy for a total duration of six weeks or more, but not constant over the prior 12 month period. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating prior to December 17, 2021, and in excess of 10 percent thereafter for service-connected eczema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1980 to August 1984 and August 1984 to November 2003. This matter was previously before the Board in December 2021, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. In a December 2021 rating decision the Veteran's disability rating for service-connected eczema was increased to 10 percent disabling effective December 17, 2021. Also in December 2021, the RO readjudicated the appeal in a supplemental statement of the case. The Board finds that VA has substantially complied with the December 2021 Board remand. As the increased rating awarded in December 2021 does not constitute a complete grant of the benefits sought on appeal, such claims remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 1. Entitlement to a compensable disability rating prior to December 17, 2021, and in excess of 10 percent thereafter for service-connected eczema The Veteran's eczema has been rated under 38 C.F.R. § 4.118, DC 7806. The Veteran was granted service connection for eczema in an August 2003 rating decision and assigned a noncompensable evaluation effective December 1, 2003, the day following her separation from service. Relevant to this claim, the Veteran filed a claim for an increased rating for eczema in July 2015. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). Following the Board's December 7, 2021 remand, a December 22, 2021, rating decision increased the Veteran's disability rating to 10 percent disabling, effective December 17, 2021, the date the Veteran underwent a VA skin examination. As noted above, the increased rating awarded in December 2021 does not constitute a complete grant of the benefits sought on appeal and therefore the Board will consider entitlement to a compensable disability rating prior to December 17, 2021 and entitlement to a disability rating in excess of 10 percent disabling thereafter. Legal Criteria 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. See 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. Under the regulations in effect at the time the Veteran filed his claim in July 2015, DC 7806 provided a noncompensable rating for less than 5 percent of the entire body, or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent evaluation 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; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted if the skin condition covers 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. 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. The Federal Circuit has found that some applications of topical corticosteroids may constitute systemic therapy under DC 7822 if administered on a large enough scale to affect the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). The Federal Circuit made clear that this determination should be made based on the facts of each individual case. Id. Effective August 31, 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). Under DC 7806, a skin disorder is rated based on the percentage of body area or exposed body area affected or based on the type and duration of therapy used to treat the disorder. For a compensable rating, at least 5 percent of the entire body or at least 5 percent of the exposed areas must be affected, or there must have been systemic therapy such as corticosteroids or other immunosuppressive drugs required at least intermittently over the preceding 12-month period. 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 warranted when no more than topical therapy was required over the past 12-month period and at least one of the following: (a) characteristic lesions involving less than 5 percent of the entire body affected; or (b) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is warranted for at least one of the following: (a) 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. A 30 percent rating is assigned for 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. In the Veteran's case, the results and pertinent criteria are essentially the same between the old and new regulations. However, the Board has considered the regulations most favorable to the Veteran and applied them accordingly. Analysis The Veteran was afforded a VA examination in January 2016, in connection with his claim for an increased rating. The examiner diagnosed the Veteran with eczema. While the Veteran reported lesions to the elbows and upper and mid back in the past, there were no current observed on examination. The Veteran noted complaints of itching, usually in the winter and that he was using over the counter cream with good results. The examiner checked the box that the Veteran has been treated with oral or topical medications for six weeks or more, but not constant, in the previous 12 months. The examiner explained that the Veteran was using over the counter Eucerin cream. It was determined that the eczema covered none (i.e. 0 percent) of either the Veteran's total body area or exposed area. In an October 2016 letter, a dermatologist noted that he has been treating the Veteran for approximately one month for rashes and redness that had resolved. The dermatologist also note that the Veteran had atopic and seborrheic dermatitis since approximately 1981 and has been on steroid creams, moisturizers and has received occasional steroid shots. The examiner did not detail when or what "steroid shots" the Veteran received. The dermatologist noted that they were treating the Veteran with topical treatment only. Treatment records in October 2016 note that the Veteran received chemotherapy treatment for a non-service-connected condition with providers noting that dryness and skin irritation was a side-effect of the Veteran's chemotherapy drugs. While treatment records show that the Veteran has sought treatment for this condition, there is no evidence that, prior to December 17, 2021 the condition affected more than 5 percent of the body affected and use of no more than topical therapy. There are no other medical opinions or treatment records discussing the Veteran's service connected eczema. Based on the above, the Board finds that the evidence is persuasively against the assignment of a compensable evaluation prior to December 17, 2021, as the Veteran's eczema does not more nearly approximate 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. The January 2016 VA examination found that the Veteran is not under any type of systemic therapy treatment for his disability and the Veteran did not exhibit any characteristic lesions. While the Veteran's dermatologist provided a letter indicating the Veteran has dealt with skin problems for some time, he did not indicate that it covers at least 5 percent of the entire body affected or that anything other than topical treatment was prescribed. The Veteran underwent a VA skin examination on December 17, 2021. The examiner found that the Veteran's eczema affected between 5 percent and 20 percent of the Veteran's total body area and less than 5 percent of the exposed area affected. The examiner noted that the Veteran's treatment consisted of topical therapy. The examiner found that the Veteran has not been treated with corticosteroids or other immunosuppressive medications. Based explicitly on the findings of the December 17, 2021 examination, the RO increased the Veteran's disability rating to 10 percent disabling effective December 17, 2021. There are no other medical records associated with the claims file that show materially different characterization of the Veteran's eczema. Upon review of the record, the Board finds that a rating in excess of 10 percent disabling from December 17, 2021, for the Veteran's service connected eczema is not warranted. The evidence does not show that the Veteran's eczema involves an exposed surface or extensive area, affects 20 to 40 percent of the entire body or of exposed areas, or requires systemic therapy such as corticosteroids or other immunosuppressive drugs and treatment administered through any route other than the skin, for a total duration of 6 weeks or more. Finally, the Board has considered the Veteran's statements during his 2018 Board hearing testimony wherein he recounted in-service steroid shots, and 6 month long flare-ups of his eczema. The Board finds the Veteran is competent to report his prior treatment, as well as his symptoms regarding the service-connected eczema. The Board also finds that the medical evidence, to include the VA examinations, have provided measurements of the exposed areas, as required by the rating criteria, which is more probative in this instance. Accordingly, the Board finds that evidence does not support an award of a compensable disability rating prior to December 17, 2021, and in excess of 10 percent disabling thereafter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.