DERMATITIS OR ECZEMA

J. RAGHEB · 2021 · Case ID: 21060374

GRANTED

Summary

The veteran, who served in the United States Army from November 1990 to November 1994, appeals the denial of a compensable rating for service-connected recurrent condyloma acuminata. The veteran was previously granted service connection for this condition, but it was assigned a noncompensable rating. The Regional Office later combined this with idiopathic thrombocytopenia purpura, assigning a 30 percent rating for the latter condition. The Board addressed the sole remaining issue: entitlement to a compensable rating for condyloma acuminata. The Board reviewed the rating criteria under Diagnostic Code 7806, noting changes effective August 13, 2018. Evidence from a November 2017 VA examination indicated the condition affected 5-20 percent of the body and exposed areas, aligning with a 10 percent rating. The Board found the evidence in equipoise regarding entitlement to a higher rating. Applying the benefit of the doubt, the Board granted a 10 percent rating for recurrent condyloma acuminata for the entire period on appeal. The Board found that a higher rating was not warranted, as the evidence did not support the criteria for 20-40 percent involvement or the need for systemic therapy beyond topical treatment.

Rationale

Evidence in equipoise regarding higher rating; Benefit of doubt resolved in veteran's favor; November 2017 VA exam indicated 5-20% body/exposed area involvement

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7806

Docket No.

17-16 461

Full Decision Text

Citation Nr: 21060374
Decision Date: 09/26/21 Archive Date: 09/26/21

DOCKET NO. 17-16 461
DATE: September 26, 2021

ORDER

A disability rating of 10 percent, but not in excess thereof, for recurrent condyloma acuminata is granted.

FINDING OF FACT

For the entire rating period on appeal, the Veteran's recurrent condyloma acuminata has been productive of eruptions that affect at least 5 percent, but less than 20 percent, of the entire body area and at least 5 percent, but less than 20 percent of the exposed areas.

CONCLUSION OF LAW

Resolving reasonable doubt in favor for the Veteran, for the entire rating period on appeal, the criteria for an award of a disability rating of 10 percent, but not in excess thereof, for recurrent condyloma acuminata have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.118, Diagnostic Code 7806.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1990 to November 1994.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a compensable rating for service-connected condyloma acuminata.

A July 19, 2017 VA Form 21-527EZ shows that the Veteran filed a new claim for service connection for idiopathic purpura. A November 20, 2017 rating decision granted service connection for idiopathic thrombocytopenia purpura and assigned a 30 percent rating effective July 19, 2017.

In a January 2018 rating decision, the RO combined the recurrent condyloma acuminata disability with idiopathic thrombocytopenia purpura presumably because the condyloma acuminata was assigned a noncompensable rating and both disabilities were rating under the same Diagnostic Code (7806). The disability was recharacterized as idiopathic thrombocytopenia purpura to include recurrent condyloma acuminata associated with iron deficiency anemia and was assigned a 30 percent rating based on the symptoms associated with the idiopathic thrombocytopenia purpura alone effective July 19, 2017, pursuant to the provisions of Diagnostic Code 7806 for dermatitis. 38 C.F.R. § 4.118; see also 38 C.F.R. § 4.116, Diagnostic Code 7628 (benign neoplasms of the gynecological system or breast should be evaluated based upon the impairment in the function of the urinary or gynecological systems, or the skin).

The record reflects that the Veteran did not disagree with the rating assigned to her service-connected idiopathic thrombocytopenia purpura. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to a disability rating in excess of 30 percent for idiopathic thrombocytopenia purpura. The Board will, therefore, address the only issue remaining on appeal, entitlement to a compensable rating for condyloma acuminata, to include whether a separate compensable rating is warranted for the period July 19, 2017.

A disability rating of 10 percent, but not in excess thereof, for recurrent condyloma acuminata is granted.

The Veteran seeks a compensable disability rating for service-connected recurrent condyloma acuminata.

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If there is a question as to which of two evaluations shall be applied, 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119,
; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

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.

Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating was 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 was 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. A 30 percent rating was 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 was 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. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806.

For claims filed prior to August 13, 2018, the United States Court of Appeals of Veterans Claims (Court) held that a systematic therapy is one 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, 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, 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 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, psoralen with long-wave ultraviolet-A light (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. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824.

In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), 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 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.

After a review of all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether manifestations of recurrent condyloma acuminata more closely approximate the criteria for a higher 10 percent rating under Diagnostic Code 7806. Although a January 2015 VA examination report noted that the Veteran's recurrent condyloma acuminata affects less than five percent of the entire body and none of the exposed areas, a November 2017 VA examination report noted that recurrent condyloma acuminata affects at least 5 percent, but less than 20 percent, of the exposed area and at least 5 percent, but less than 20 percent, of the
works and its side effects.

Based on the foregoing evidence, and after resolving reasonable doubt in favor of the Veteran, the Board finds that a disability rating of 10 percent under Diagnostic Code 7806 for service-connected recurrent condyloma acuminata is warranted for the entire rating period on appeal, to include the period from July 19, 2017. 38 C.F.R. §§ 4.3, 4.7, 4.118. In other words, a 10 percent rating is warranted for the period prior to July 19, 2017, and a separate 10 percent rating is warranted for the period from July 19, 2017.

The Board further finds that a disability rating in excess of 10 percent for recurrent condyloma acuminata is not warranted at any point during the rating period on appeal. A higher 30 percent rating would be warranted under the old rating criteria 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 higher 30 percent rating would be warranted under the old rating criteria 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. The evidence weighs against such manifestations.

In this regard, the service-connected recurrent condyloma acuminata has affected less than 20 percent of the entire body and less than 20 percent of the exposed areas of the body, and has required no more than topical therapy during a 12-month period. An October 2019 VA examiner opined that treatment for the Veteran's condyloma acuminata is best categorized as topical therapy. Treatment records during the appeal period do not otherwise show that the service-connected recurrent condyloma acuminata has affected more than 20 percent of the entire body or more than 20 percent of exposed areas, or has required more than topical therapy. The evidence does not otherwise show treatment with corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over a12-month period.

For these reasons, a disability rating in excess of 10 percent is not warranted for the service-connected recurrent condyloma acuminata at any point during the rating period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806.

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Edward G. Lent

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.

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