Citation Nr: 0511658 Decision Date: 04/25/05 Archive Date: 05/03/05 DOCKET NO. 02-03 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 10 percent for eczematous dermatosis of the wrists and hands. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active military service from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) from a May 2001 rating decision by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA), which continued the 10 percent evaluation of the veteran's service-connected eczematous dermatosis of the wrists and hands. The veteran requests a higher rating. The veteran testified before the undersigned Veterans Law Judge at a travel board hearing at the RO in June 2002. A transcript of the hearing is of record. In June 2003, the Board remanded the veteran's case to the RO for further development. The case was returned to the Board in March 2005. FINDINGS OF FACT 1. The VA has fully informed the veteran of the evidence necessary to substantiate her claim and has made reasonable efforts to develop such evidence. 2. Prior to August 30, 2002, the veteran's eczematous dermatosis was manifested by exfoliation and itching on an exposed surface, without evidence of marked disfigurement or extensive lesions. 3. Effective August 30, 2002, the veteran's eczematous dermatosis involved at least 5 percent, but less than 20 percent of body surface, did not allow for the use of systemic therapy, included exfoliation and itching on an exposed surface, but was without evidence of marked disfigurement or extensive lesions. CONCLUSION OF LAW Prior to and effective August 30, 2002, the schedular criteria for a rating in excess of 10 percent for eczematous dermatosis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7806 (2002) and Diagnostic Code 7806 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that there has been a significant change in the law during the pendency of this appeal, with enactment of the Veterans Claims Assistance Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). This law redefines the obligations of VA to the appellant with respect to claims for VA benefits. In Pelegrini v. Principi, 18 Vet.App. 112, (2004), referred to as Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) essentially held that VA must provide notice "upon receipt" and "when" a substantially complete application for benefits is received. This mandates that notice precede an initial unfavorable AOJ (agency of original jurisdiction) decision on a service-connection claim. The Court also specifically recognized that where the notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice specifically complying with section 5103(a)/§ 3.159 because an initial AOJ adjudication had already occurred. For the reasons enumerated below, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case, or to cause injury to the veteran. As such, the Board concludes that any such error is harmless, and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). The Board notes that a substantially complete claim was received in October 2000, before the enactment of the VCAA. Letters dated in January 2003, April 2003, July 2003, and March 2004 provided the veteran the notice required under the VCAA and the implementing regulations. The April 2003 letter informed the veteran that the law for 38 C.F.R. § 4.118, Diagnostic Code 7806, under which the veteran was rated, had changed. It also provided a copy of the new law and allowed the veteran to respond. Further, although the letters did not specifically inform the veteran to submit any pertinent evidence in her possession, it informed her of the evidence required to substantiate her claim and that she should submit such evidence or provide VA with the information necessary for such evidence to be obtained on her behalf. Additionally, the February 2002 statement of the case and November 2004 supplemental statement of the case provided guidance regarding the evidence necessary to substantiate her claim. The June 2003 Board remand also provided such guidance. In the Board's opinion, the RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent, available evidence has been obtained in this case. The veteran has not identified any additional evidence that could be obtained to substantiate the claim. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. Accordingly, the Board will address the merits of this claim. Factual Background The veteran had active military service from November 1980 to November 1983. The veteran was service connected with a noncompensable rating for eczematous dermatosis of the right wrists and hands, effective September 1987. In June 1992, the RO increased the veteran's rating for eczematous dermatosis of the wrists and hands to 10 percent, effective March 1992. In October 2000, the veteran submitted a claim for an increased rating for her eczematous dermatosis of the wrists and hands. She stated she had several spots that itched continuously and bled when she scratched them. She used medicated creams on the areas, which offered no relief from the condition. The RO received the veteran's VA outpatient medical records dated January 2001 to May 2001. Her active outpatient medications during this time included Absorbase topical ointment, and a cleansing soap bar for sensitive skin use. In February 2001, the veteran underwent a VA examination. The veteran reported having lesions on her arms and legs and stated that her hands were frequently dried, chapped, and irritated from the soap that she used to clean supplies. She stated the sores pop up as a blister that opens and gives a little bit of weeping drainage, then it would crust over, become hard and hyperpigmented. She also reported that her hands itch when they break out and while they are weeping, but they become less itchy as they are healing. The VA examiner noted that at the time of the examination, some of the lesions were crusted, some where hyperpigmented and the skin was tough, others were open, but not draining, and none were actually weeping or blistered. He noted that the veteran used a moisture cream, Absorbase, and no other kind of cream was noted in her medical records. He also noted that the veteran had no complaints of pain in the joints and range of motion of her hands and wrists were within normal limits. There was also no redness or swelling of the joints. The diagnosis was continued varying stages of pruritic dermatitis. In May 2001, the RO denied the veteran's claim for an increased rating stating the veteran's condition remained active, but the medical evidence was negative for any treatment. The RO continued the 10 percent rating. The RO received the veteran's VA outpatient medical records dated August 2000 to February 2002. Her active medication during this time period included Absorbase topical ointment, a cleansing soap bar for sensitive skin, and Triamcinolone ointment. In a November 2001 treatment note, it is noted that the veteran had a lesion on her hand with hyperpigmentation and skin thickening consistent with eczema. She was prescribed triamcinolone ointment. The veteran testified at a June 2002 travel board hearing before the undersigned Veterans Law Judge. She stated she was using cortisone cream, ointments, moisture creams and basic soaps as medication for her eczematous dermatosis. She took oral Prednisone for her asthma. She stated she had constant itching, bleeding, and irritation. She also had dryness, crusts and discoloration. She stated that when she scratched it hurt and burned. The eczematous dermatosis interfered with her employment and housework. At the end of the hearing, the veteran submitted photos of her hands. The RO received the veteran's VA outpatient medical records dated August 2002 to January 2003. The August 2002 treatment record shows the veteran complaining of itchy areas on right hand and left chest. She reported trying Triamcinolone without success. She was prescribed Clobestasol ointment. The September 2002 treatment record states the veteran was told to continue the Clobestasol ointment and use Tretinoin gel, Nizoral shampoo and Fluocinolone. In January 2003, she was also told to use Cordran tape if preferred. In February 2003, the veteran underwent a VA examination. A list of the veteran's current medications for her eczematous dermatosis was noted in the medical record. The medications were Absorbase, basic soap, Temovate ointment, Triamcinolone ointment, and Cordran tape to plaques on hands. Flucinolone solution and Keto shampoo were also noted as being used for her scalp. The veteran complained of itching and admitted to scratching. She stated she had a history of asthma and had not used oral steroids within the last three years. Upon examination, the VA examiner noted that there was a hyperpigmented plaque on the dorsum right hand with scales. A smaller plaque on the left dorsum hand near the thumb with hyperpigmentation was found. The palms were lichenified, but there was no fissuring or exudation. The eczematous was found on exposed areas and the examiner opined it was on less than 10 percent of the total body surface area. The diagnosis was eczematous dermatitis of the hands that was exacerbated by the veteran's current job. It did not prevent her working. There was no constant exudation and no disfigurement. The examiner opined there were no grounds to increase the 10 percent rating. He recommended the veteran continue the Temovate and Cordran. In February 2003, the veteran submitted a list of current medications. They included moisture cream, cleaning soap bar, Clobetasol Propionate ointment, Triamcinolone Acetonide ointment, Fluocinolone Acetonide, Retin-a gel Tretinoin, and Flurandrenolide tape. In a March 2003 letter, the veteran alleged that she had constant exudation and itching. In an April 2003 VA outpatient treatment medical record, it stated the veteran was seen for a follow-up visit for her eczematous dermatitis of the hands, among other reasons. She reported having a history of asthma, but did not take oral steroids. She was using Cordran tape and emollients to treat her hand rash with good improvement. The VA examiner noted hyperpigmented plaque on the dorsum right hand with slight scale, and a slightly smaller hyperpigmented plaque on the dorsum of the left hand near the thumb. In August 2003, the veteran submitted another list of her current medications. They were Absorbase, basic soap, Clobetasol Propionate ointment, Triamcinolone Acetonide ointment, Fluocinolone Acetonide, Ketoconazole shampoo, and Flurandrenolide tape. In an October 2003 VA outpatient treatment record, the VA examiner noted scaly plaques at the veteran's fingertips, no fissures, and hypopigmentation at the fingertips. The examiner recommended the veteran discontinue the Cordran tape, recommended continuing Clobetasol ointment and Absorbase ointment. In a February 2004 VA outpatient treatment record, it is noted the veteran was to continue using Clobetasol ointment and Absorbase ointment. The most recent listing of active outpatient medications included in the evidence of record is dated September 2004. Included in the list are Absorbase topical ointment, Clobetasol Propionate ointment, Erythromycin topical gel, Flucinolone Acetonide, Tretinoin cream, and Triamcinolone Acetonide cream. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Court has held that where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); 38 U.S.C.A. § 5110(g). In deciding such case, the Board must determine whether the previous or revised version is more favorable to the veteran. However, if the revised version is more favorable, the retroactive reach of that regulation can be no earlier than the effective date of the change, and the Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000 (2000). Under Diagnostic Code 7806, in effect before August 30, 2002, a 50 percent rating was warranted for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. A 30 percent rating was warranted for constant exudation or itching, extensive lesions, or marked disfigurement. A 10 percent disability rating was warranted for exfoliation, exudation or itching, if involving an exposed surface or extensive area. 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 30, 2002, the rating criteria for Diagnostic Code 7806 were amended. Under the revised Diagnostic Code 7806, a 60 percent disability rating is warranted if more than 40 percent of the entire body, or more than 40 percent of exposed areas, is affected, or if constant or near- constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required during the preceding 12 months. A 30 percent evaluation is warranted if 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, is affected, or if systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for six weeks or more, but not constantly, during the preceding 12 months. A 10 percent disability rating is warranted where 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 is required for a total duration of less than six weeks during the past 12-month period. The veteran is currently rated for eczematous dermatosis of the wrists and hands with a 10 percent evaluation. The record reflects that the February 2001 VA examiner noted some of the veteran's lesions were crusted and the skin was tough. Some were open, but none were draining. His diagnosis was pruritic dermatitis. The February 2003 VA examiner noted the veteran had a hyperpigmented plaque on her right hand with scales and the eczematous dermatosis was found on exposed areas. He also opined that the eczematous dermatosis affected less than 10 percent of the total body surface area. In addition, the October 2003 outpatient treatment record revealed the veteran having scaly plaques at her fingertips. The veteran has also reported that her hands itch and are crusted. Therefore, the evidence supports a finding of exfoliation and itching involving an exposed surface and less than 10 percent of the body surface area. The Board concludes that the veteran's eczematous dermatosis of the wrists and hands are properly evaluated as 10 percent disabling. According to 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, the veteran's disability meets the criteria for a 10 percent rating under the pre-August 30, 2002 rating criteria and under the amended version. The medical evidence shows that the veteran has exfoliation and itching of an exposed surface. Further, the evidence supports a finding that less than 10 percent of her body is affected by the eczematous. Giving the veteran the benefit of the doubt, it can be said that at least 5 percent, but less than 20 percent of her entire body is affected by the eczematous dermatosis. Therefore, the 10 percent rating applied by the RO is correct. A higher rating is not warranted because, according to the pre-August 2002 criteria under 38 C.F.R. § 4.118, DC 7806, exudation or itching must be constant, the veteran must have extensive lesions, or marked disfigurement. Although the veteran alleges having constant exudation and itching, the February 2001 examiner noted that there was no drainage or weeping. In addition, the February 2003 VA examiner noted no exudation. He also noted there was no disfigurement. Her lesions were not noted to be extensive in any medical records. Further, the veteran reported, during a February 2001 VA examination, that her hands itch when they break out, but they become less itchy as they are healing. Therefore, the veteran is not shown to have constant exudation or itching, extensive lesions, or marked disfigurement and does not meet the criteria for a 30 percent evaluation. According to the amended criteria under 38 C.F.R. § 4.118, DC 7806 (2004), the veteran must have at least 20 to 40 percent of the entire body affected or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. As noted previously, the February 2003 VA examiner opined that the veteran had less than 10 percent of her body surface area affected. In addition, the medical records show that she uses corticosteroids as therapy, but these have all been topical treatments and not systemic treatments (involving the entire body). Therefore, a 30 percent evaluation under the amended criteria is also not warranted. In conclusion, the evidence does not support an evaluation in excess of 10 percent for eczematous dermatosis of the wrists and hands under either the old or the revised rating codes. ORDER Entitlement to an evaluation in excess of 10 percent for eczematous dermatosis of the wrists and hands is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs