DERMATITIS OR ECZEMA

Summary

The veteran, who served from October 2010 to November 2011, appeals the reduction of his disability rating for dermatitis and urticaria from 60 percent to 30 percent, effective January 1, 2020. The Board of Veterans' Appeals reviewed the evidence, including VA examinations from October 2016, February 2017, and May 2019, along with addendum opinions. The initial 60 percent rating was based on the veteran's use of systemic therapy, including oral antihistamines and topical corticosteroids, and the presence of four or more debilitating episodes in the past 12 months. The reduction in October 2019 was based on a May 2019 examination that indicated the veteran no longer required constant systemic therapy and had minimal visible signs of rash or urticaria. However, the Board found that the evidence did not demonstrate sustained improvement in the veteran's ability to function under ordinary conditions. The May 2019 examination noted work impacts due to itching and prominent erythema, and the addendum opinion clarified that the veteran never had a break in treatment. Considering the intermittent nature of skin conditions and the continued impact on the veteran's ability to work, the Board concluded that the reduction was improper. The 60 percent rating is restored, effective January 1, 2020.

Rationale

Reduction from 60% to 30% was improper; Insufficient evidence of sustained improvement; Condition continued to impact ability to work

Full Decision Text

Citation Nr: A22024027
Decision Date: 11/28/22	Archive Date: 11/28/22

DOCKET NO. 200121-54604
DATE: November 28, 2022

ORDER

Restoration of a 60 percent rating for dermatitis and urticaria effective January 1, 2020, is granted, subject to the law and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. At the time of the reduction in the October 2019 rating decision, the 60 percent rating for the Veteran's service-connected dermatitis and urticaria had been in effect for less than five years.

2. The evidence of record at the time of the October 2019 rating decision failed to demonstrate a sustained improvement in the Veteran's service-connected dermatitis and urticaria under ordinary conditions of life and work.

CONCLUSION OF LAW

The reduction of the rating for dermatitis and urticaria from 60 percent to 30 percent was improper, and restoration of the 60 percent rating, effective January 1, 2020, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.13, 4.118, Diagnostic Code (DC) 7806. 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from October 2010 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2019 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system. In January 2020, the Veteran timely appealed to the Board, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). In a December 2020 decision, the Board denied the claim on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued a Memorandum Decision that vacated and remanded the Board's December 2020 decision. It now returns for further appellate review. Furthermore, the Board notes that in November 2021, the Veteran perfected appeals regarding the issues of entitlement to service connection for migraine headaches and sleep apnea under the modernized appeals system. However, such issues will be the subject of Board decisions issued at a later date, if otherwise in order.

Whether the reduction in the rating assigned for dermatitis and urticaria from 60 percent to 30 percent, effective January 1, 2020, was proper.

This appeal arises out of the Veteran's disagreement with a decision to reduce the rating assigned for his skin disability from 60 percent to 30 percent, effective January 1, 2020. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, as well as the fact that he has 60 days to present evidence showing why the reduction should not be implemented and may request a hearing. 38 C.F.R. § 3.105(e). The Board observes that the AOJ complied with § 3.105(e) in that the Veteran was informed of the proposed action in a June 2019 rating decision. In an attached letter, the Veteran was notified of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing. Thus, the Board finds that the notice requirements of 38 C.F.R. § 3.105(e) have been met. Thereafter, the reduction was effectuated in the October 2019 rating decision on appeal, which reduced the rating assigned for his skin disability from 60 percent to 30 percent, effective January 1, 2020.

The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The Court stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown,
 evidence within a 60-day period as well as his right to request a personal hearing. Thus, the Board finds that the notice requirements of 38 C.F.R. § 3.105(e) have been met. Thereafter, the reduction was effectuated in the October 2019 rating decision on appeal, which reduced the rating assigned for his skin disability from 60 percent to 30 percent, effective January 1, 2020.

The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The Court stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 60 percent rating for the Veteran's skin disability was in effect from August 28, 2016, to December 31, 2019, i.e., less than 5 years. Thus, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations are not applicable. 38 C.F.R. § 3.344 (c).

However, the Court also noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. 

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra, at 277.

The Veteran's service-connected skin disability is evaluated under the criteria of DC 7806. Prior to August 13, 2018, DC 7806 provides for a 30 percent evaluation for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the 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. A maximum 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118.

As of August 13, 2018, DC 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a 30 percent rating where there are characteristic lesions involving 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 warranted where there are 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.

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intr
 but not constantly, over the past 12 month period. A 60 percent rating is warranted where there are 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.

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is 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."

With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also 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 Burton v. Wilkie, 30 Vet. App. 286 (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.

By way of background, in a November 2015 rating decision, service connection for urticaria was granted with a 10 percent rating assigned, effective April 8, 2015. The Veteran filed a claim for service connection for dermatitis in August 2016, and the AOJ in an April 2017 rating decision, recharacterized the disability as dermatitis and urticaria, interpreted the Veteran's August 2016 application as one for an increased rating for service-connected skin disability, and increased the rating to 60 percent, effective August 25, 2016. In a July 2017 rating decision, the AOJ found a clear and unmistakable error in the effective date assigned in the April 2017 rating decision, finding that the 60 percent award was properly effective from August 28, 2016, the date of claim. 

In this regard, the 60 percent increased rating was awarded based on October 2016 and February 2017 VA examinations. Specifically, the October 2016 examiner indicated that the Veteran had both dermatitis and urticaria, and that he had been treated with the antihistamine loratadine (an oral medication) on a constant/near constant basis in the past 12 months. He also indicated that the Veteran did not use any systemic corticosteroids or other immunosuppressive medications to treat his dermatitis or urticaria, but that he did use topical corticosteroids on a constant/near constant basis in the past 12 months. The examiner also stated that the Veteran had undergone PUVA treatment for six weeks or more, but not constantly, in the past 12 months, and that he had had four or more debilitating episodes in the past 12 months despite ongoing immunosuppressive therapy. He found that the Veteran's dermatitis covered 20 to 40 percent of his total body area, with less than 5 percent of the area being exposed. Finally, he opined that the disability impacted the Veteran's ability to work as he did not respond to treatment and the Veteran woke up tired because he was not sleeping due to burning and itching.

During his February 2017 VA examination, such examiner indicated that the Veteran used both antihistamines and topical corticosteroids on a constant/near constant basis in the past 
 six weeks or more, but not constantly, in the past 12 months, and that he had had four or more debilitating episodes in the past 12 months despite ongoing immunosuppressive therapy. He found that the Veteran's dermatitis covered 20 to 40 percent of his total body area, with less than 5 percent of the area being exposed. Finally, he opined that the disability impacted the Veteran's ability to work as he did not respond to treatment and the Veteran woke up tired because he was not sleeping due to burning and itching.

During his February 2017 VA examination, such examiner indicated that the Veteran used both antihistamines and topical corticosteroids on a constant/near constant basis in the past 12 months and that he had had four or more non-debilitating episodes in the past 12 months, which responded to treatment with antihistamines or sympathomimetics. The Veteran's dermatitis also covered 5 to 20 percent of his total body area, with less than five percent of the total area exposed. The examiner also noted that there were very little signs of rash or urticaria. The examiner noted that the disability impacted the Veteran's ability to work as he had to take periodic breaks to take an antihistamine and/or to scratch an itch. The examiner further noted that there were very little signs of a rash or urticaria and that the Veteran described it as it "comes and goes." 

An addendum opinion from the February 2017 VA examiner was obtained in March 2017. The examiner clarified that the approximate area affected if and when the Veteran had symptoms of dermatitis/urticaria, would be about 20 percent of his body surface and approximated 5 percent of his exposed area. The examiner also noted that the Veteran stated his condition "comes and goes" and that such was consistent with intermittent manifestations of his condition (dermatitis manifested by urticaria and pruritis). The examiner also clarified that the Veteran used both topical and oral medication, that the oral antihistamine actually controlled the Veteran's dermatitis and was not taken solely for allergic rhinitis, and that at the February 2017 examination there was 0 percent of the skin with dermatitis of any type.

Based on the October 2016 and February 2017 VA examinations, and the March 2017 addendum opinion, the AOJ increased the Veteran's rating for dermatitis and urticaria from 10 to 60 percent since such demonstrated the Veteran's use of systemic therapy during the past 12 months on a constant/near constant basis.

Thereafter, in May 2019, the Veteran underwent a routine VA examination for his dermatitis and urticaria. The Veteran indicated that his condition was stable but that it "comes and goes." The examiner noted that the Veteran had been treated with topical corticosteroids or other immunosuppressive medications on a constant/near constant basis in the past 12 months, and that he also used oral antihistamines for 6 weeks or more, but not constantly in the past 12 months. She also indicated that the Veteran's dermatitis covered between 5 to 20 percent of his body with no exposed areas, and that the Veteran had no clinically visible areas of urticaria. In this regard, she noted the Veteran has a skin condition currently without any visible characteristic lesions at the time of the examination. She further noted that the Veteran's skin disability impacted his ability to work as he had lost 1 to 2 weeks of work time in the past 12 months because he took a day off when pruritis or erythema were prominent, and that he would occasionally take breaks if itching became severe.

The AOJ sought an addendum opinion later that same month as the May 2019 examiner indicated that the Veteran did not have urticaria. The examiner stated that her prior indication that the Veteran did not have urticaria was in error and that it needed to be disregarded. She repeated that the Veteran had urticaria, stated that he had never had a break in treatment, and reiterated that he used corticosteroid cream on a constant/near constant basis and antihistamines as needed about 8 days per month.

Based on the foregoing, the Board finds the reduction in the rating for the Veteran's skin disability from 60 percent to 30 percent, effective January 1, 2020, was improper. In this regard, the Board observes that such reduction was based upon the determination that the Veteran's skin disability had improved to the point where he no longer required systemic therapy during the past 12 months on a constant/near constant basis. Specifically, the May 2019 VA examination reflected that the Veteran had been treated with topical corticosteroids as he used Betamethasone cream topically on a constant
 used corticosteroid cream on a constant/near constant basis and antihistamines as needed about 8 days per month.

Based on the foregoing, the Board finds the reduction in the rating for the Veteran's skin disability from 60 percent to 30 percent, effective January 1, 2020, was improper. In this regard, the Board observes that such reduction was based upon the determination that the Veteran's skin disability had improved to the point where he no longer required systemic therapy during the past 12 months on a constant/near constant basis. Specifically, the May 2019 VA examination reflected that the Veteran had been treated with topical corticosteroids as he used Betamethasone cream topically on a constant/near constant basis in the past 12 months, and that he also used oral antihistamines for 6 weeks or more but not constantly in the past 12 months, as he used antihistamine as needed about 8 days per month. Such indicates that the Veteran does not meet the criteria for a 60 percent rating under DC 7806. Nevertheless, the Board finds the evidence does not show actual improvement in the impact of the Veteran's skin disability on his ability to function under ordinary conditions of life and work.

Specifically, at the same examination in May 2019, the examiner noted that the Veteran's skin disability impacted his ability to work as he had lost 1 to 2 weeks of work time in the past 12 months because he took a day off when pruritis or erythema were prominent, and that he would occasionally take breaks if itching became severe.  Additionally, the examiner who provided the May 2019 VA addendum opinion noted that the Veteran never had a break in treatment. Furthermore, the Board acknowledges that skin conditions, due to their inherent nature, often wax and wane and have active and inactive periods.  See Ardison v. Brown, 6 Vet. App. 405 (1994).  

Therefore, the Board finds that, at the time of the reduction in the October 2019 rating decision, there was insufficient evidence showing sustained and material improvement in the Veteran's skin disability that was reasonably certain to be maintained under ordinary conditions of life and work. Accordingly, the reduction of the Veteran's dermatitis and urticaria rating was improper, and restoration of the 60 percent rating is warranted effective January 1, 2020.

 

CLAIRE M. DAVIDOSKI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Clark

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.