Citation Nr: 0607673 Decision Date: 03/16/06 Archive Date: 03/29/06 DOCKET NO. 03-02 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a disorder manifested by thinning of the penile skin as the result of exposure to herbicide agents. 2. Entitlement to a higher initial rating for service- connected dyshidrotic dermatitis of the hands, currently evaluated as 10 percent disabling. 3. Entitlement to a higher initial rating for service- connected essential pruritus and xerosis of the legs, currently evaluated as 10 percent disabling. 4. Entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran had active service from July 1967 to August 1997. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand of December 2004. This matter was originally on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. In a July 2005 rating decision, the Appeals Management Center (AMC) granted service connection for tinea pedis and onychomycosis, bilateral feet and awarded a 10 percent rating. The rating decision shows that the AMC erroneously advised the veteran that the award of service connection represented a partial grant of the benefits sought on appeal, that his claim was still considered to be in appellate status, and that further processing would continue unless he advised AMC that he was satisfied with the decision. The AMC requested that if the veteran would like to withdraw his appeal to advise them within 60 days, otherwise his appeal would be certified to the Board. The claims file shows that the veteran has not filed at the RO a notice of disagreement with the initial rating assigned this disability. Hence, there are no allegations of errors of fact or law for appellate consideration. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The medical evidence shows that the veteran's dyshidrotic dermatitis of the hands is not productive of constant itching, extensive lesions, or marked disfigurement; 20 to 40 percent of the veteran's entire body or 20 to 40 percent of his exposed areas is not affected, and he is not taking systemic therapy. 3. The medical evidence shows that the veteran's essential pruritus and xerosis of the legs is not productive of constant itching, extensive lesions, or marked disfigurement; physical manifestations of the disability (xerosis of the legs) affects between 20 to 40 percent of his entire body but not more than 40 percent of his entire body, and he is not taking systemic therapy. 4. Compensable evaluations are in effect for service- connected tinea pedis and onychomycosis, bilateral feet, dyshidrotic dermatitis of the hands, essential pruritus, and xerosis of the legs. 5. The veteran does not have a penile disorder. CONCLUSIONS OF LAW 1. A disorder manifested by thinning of the penile skin was not incurred in or aggravated by active service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2005). 2. The criteria for a higher initial rating in excess of 10 percent for service-connected dyshidrotic dermatitis of the hands have not been met or approximated under either the old or revised applicable diagnostic code of the schedule for evaluating skin disorders. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.27, 4.118, Diagnostic Code 7806 (2005). 3. The criteria for a higher initial rating in excess of 10 percent for service-connected essential pruritus and xerosis of the legs have not been met or approximated under the old applicable diagnostic code of the schedule for evaluating skin disorders. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 4.118, Diagnostic Code 7816 (2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.27 (2005). 4. The criteria for a higher initial rating of 30 percent for service-connected essential pruritus and xerosis of the legs have been approximated under the revised applicable diagnostic code of the schedule for evaluating skin disorders. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.27, 4.118, Diagnostic Code 7816 (2005). 5. The criteria for a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 have not been met. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.324 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2005). VA is required to provide the claimant with notice of what information or evidence is to be provided by the Secretary and what information or evidence is to be provided by the claimant with respect to the information and evidence necessary to substantiate the claim for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board finds that VA's enhanced duty to notify under the VCAA has been met. In this regard, the Board notes that in correspondence dated in December 2001, the RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claims, including which portion of the information and evidence necessary to substantiate the claims was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. Quartuccio, 16 Vet. App. at 187. The December 2001 VCAA notice advised the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The Board acknowledges that the December 2001 VCAA notice contained no specific request for the veteran to provide any evidence in the veteran's possession that pertained to the claims or something to the effect that the veteran give VA everything he had that pertained to his claims. 38 C.F.R. § 3.159(b)(1) (2005). A complying notice, however, need not necessarily use the exact language of the regulation so long as that notice properly conveys to a claimant the essence of the regulation. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The RO asked the veteran for all the information and evidence necessary to substantiate his claims-that is, evidence of the type that should be considered by VA in assessing his claims. A generalized request for any other evidence pertaining to the claims would have been superfluous and unlikely to lead to the submission of additional pertinent evidence. Therefore, it can be concluded, based on the particular facts and circumstances of the case, the omission of the request for "any evidence in the claimant's possession that pertains to the claim" in the notice did not harm the veteran, and it would be legally proper to render a decision in the case without further notice under the regulation. Id. In further regard to VA's duty to notify, the Board notes that the RO provided the veteran with a copy of the August 2002 rating decision, January 2003 Statement of the Case (SOC), July 2005 rating decision, and July 2005 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claims, notification of the bases of the decisions, and a summary of the evidence used to reach the decisions. The January 2003 SOC and July 2005 SSOC provided the veteran with notice of all the laws and regulations pertinent to his claims, including the law and implementing regulations of the VCAA and the applicable diagnostic rating criteria from the amended schedule for evaluating skin disorders. The Board notes that the rating criteria for evaluating skin disorders were changed effective August 30, 2002. Amendment to Part 4, Schedule for Rating Disabilities, 67 Fed. Reg. 49,590-49,599 (July 31, 2002) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7833 (2003-2005)). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to resolution of his or her claim under the criteria that are more to his or her advantage. VAOPGCPREC 3-00. The old criteria may be applied for the full period of the appeal. The new rating criteria, however, may only be applied to the period of time after their effective date. Id. The July 2005 SSOC shows that the AMC considered whether the veteran would be entitled to a higher disability rating under the relevant new rating criteria. While the veteran was not provided with separate written notice of what the evidence must show to entitle him to a higher disability rating pursuant to the Board's December 2004 Remand, this information was provided to him in the July 2005 SSOC. In the AMC's letter to the veteran dated in December 2004, the AMC clearly advised the veteran of the delegation of responsibility between VA and the veteran in substantiating his claim that he was entitled to higher disability ratings-that is, to report for a VA examination AMC scheduled in connection with his claims. The AMC additionally advised the veteran that the purpose of the VA examination was to evaluate his disability claim. In the Statement in Lieu of VA Form 646 dated in October 2005, the veteran's service representative noted that VCAA compliance had not been met as ordered by the Board's Remand and that the veteran should be informed of his due process rights in accordance with the VCAA. Yet, the Board observes that the veteran has not indicated how he was prejudiced by his receipt of notice of the applicable amended rating criteria in the July 2005 SSOC separate from his notice of his responsibility to report for a VA examination in the December 2004 letter. The veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. The Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. In regard to VA's duty to assist, the Board notes that the RO obtained the veteran's service medical records and records from the Naval Hospital in Great Lakes and afforded the veteran a VA examination in May 2002. Pursuant to the Board's Remand, the AMC afforded the veteran another VA examination in January 2005 that addressed the applicable revised diagnostic rating criteria for his skin disorders. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Accordingly, the Board will proceed with appellate review. II. Service Connection for Disorder Manifested by Thinning of the Penile Skin Service medical records and records from the Naval Hospital showed that the veteran complained of dry skin on his penis and that he was treated with liquid nitrogen for condyloma of the penis in the 1980s and 1990s. A January 2000 record noted that the veteran underwent circumcision revision for a nonhealing fissure. A February 2000 record noted that the circumcision site was healing well. The impression noted was status post circumcision doing well. In the veteran's Substantive Appeal dated in January 2003, he complained that the skin on his penis appeared to be thinning and cracked easily. He acknowledged that his surgery did help the problems with his penis, but that was "after years of suffering." The January 2005 VA examination report showed that Dr. S.S. reviewed the claims file and discussed pertinent findings noted in the medical records. Dr. S.S. maintained that the examination revealed a completely normal penis. Dr. S.S. concluded that the veteran had no penile eruption and no residual from the prior cryotherapy. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). While the veteran complains that he continues to experience thinning and cracking associated with his penis, the medical evidence of record shows no chronic residuals of the problems he had during service. The veteran is competent to describe his subjective symptoms, but he does not possess the requisite medical expertise needed to render a medical diagnosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As such, the Board finds Dr. S.S.'s examination dispositive on the medical question as to whether the veteran has a current disability. Entitlement to service-connected benefits is specifically limited to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that in the absence of proof of a present disability there can be no valid claim). As no current disability is shown by the medical evidence of record, there is no basis upon which a grant of service connection may be established. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Higher Initial Rating for Dyshidrotic Dermatitis of the Hands In the August 2002 rating decision, the RO granted service connection for dyshidrotic dermatitis of the hands and assigned a noncompensable evaluation under Diagnostic Code 7806 effective from October 23, 2001, the date of receipt of the veteran's claim. In a July 2005 rating decision, the AMC increased the disability rating to 10 percent effective from October 23, 2001. Service medical records showed that the veteran was treated for a rash of his hands in the 1970s. According to a December 2001 statement, the September 2002 Notice of Disagreement, and the January 2003 Substantive Appeal, the veteran contends that he experiences itching in his hands. The May 2002 VA examination report showed that the veteran reported that he had recurrent episodes of eruptions filled with either water or pus associated with itching that were worse in the summer and clear in the winter. He reported that he had been treated with several medications and the only medication that seemed to be of benefit was the use of Atarax, which he took daily. The physical examination revealed a few vesicles on the sides and dorsum of his fingers. Dr. S.S. provided an impression of dyshidrotic dermatitis, affecting primarily the hands. The January 2005 VA examination report showed that Dr. S.S. reviewed the claims file and discussed pertinent findings noted in the medical records. Dr. S.S. related that the veteran reported that he developed one to three episodes of blisters yearly; the episodes lasted for a few weeks. He was currently taking 50 milligrams of hydroxyzine (Atarax) at bedtime for this process. Dr. S.S. reported no current clinical physical findings. Under the old rating criteria of Diagnostic Code 7806, a 10 percent rating is prescribed for eczema [dermatitis is rated as eczema] with exfoliation, exudation, or itching, if involving an exposed surface or extensive area. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Id. A 30 percent rating is prescribed for eczema with constant exudation or itching, extensive lesions, or marked disfigurement. Id. A 50 percent rating is prescribed for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnance. Id. The medical evidence shows that the veteran's dyshidrotic dermatitis of the hands is productive of itching and involves an exposed surface-the hands. The medical evidence, however, also shows that this skin disorder is not productive of constant itching but rather controlled with the veteran's use of Atarax as is well documented in the service medical records and Naval Hospital records. The skin disorder is also not productive of extensive lesions and has not been described as causing marked disfigurement. For these reasons, the Board finds that the veteran's hand disability does not more nearly approximate the old rating criteria associated with the next higher rating of 30 percent under Diagnostic Code 7806. Under the revised rating criteria of Diagnostic Code 7806, the skin disability is to be evaluated under the criteria provided under Diagnostic Code 7806, or rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, or rated as scars (Diagnostic Codes 7801-7805), depending upon the predominant disability. Here, the predominant disability is the dermatitis. Under Diagnostic Code 7806, a 10 percent rating is assigned where the dermatitis covers an area of 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 requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2005). A 30 percent rating is prescribed where the dermatitis covers 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A rating of 60 percent is prescribed where the dermatitis covers an area of more than 40 percent of the entire body or more than 40 percent of the exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. The veteran's hand condition was not present at the January 2005 VA examination as Dr. S.S. reported on no clinical findings. At the prior VA examination conducted in May 2002, Dr. S.S. described only a "few vesicles" were present on the sides and dorsum of the veteran's fingers. Service connection is in effect for dyshidrotic dermatitis of the hands, so 20 to 40 percent of the veteran's entire body or 20 to 40 percent of the veteran's exposed areas is not affected. The veteran has been treated for many years with Atarax, an antihistamine, and not an immunosuppressant, so the veteran is not taking systemic therapy. Consequently, the Board finds that the veteran's hand disability does not more nearly approximate the revised rating criteria associated with the next higher rating of 30 percent under Diagnostic Code 7806. Accordingly, the Board concludes that the preponderance of the evidence is against assignment of an initial disability rating in excess of 10 percent under Diagnostic Code 7806 (old and revised) for service-connected dyshidrotic dermatitis of the hands. IV. Higher Initial Rating for Essential Pruritus and Xerosis of the Legs In the August 2002 rating decision, the RO granted service connection for essential pruritus and xerosis of the legs and assigned a noncompensable evaluation under Diagnostic Code 7816 effective from October 23, 2001, the date of receipt of the claim. In a July 2005 rating decision, the AMC increased the disability rating to 10 percent effective from October 23, 2001. Service medical records and records from the Naval Hospital showed that the veteran was seen for complaints of essential pruritus on several occasions. These records showed that the pruritus was controlled with the use of Atarax. According to a December 2001 statement, the September 2002 Notice of Disagreement, and the January 2003 Substantive Appeal, the veteran contends that he experiences an "internal itch" of his body. The May 2002 VA examination report showed that the veteran reported that his itching was controlled by the use of Atarax, and that there was no seasonal variation. Without taking the medication, he maintained that the itching kept him awake at night. He further reported that he had "thin skin" of the legs; when he scratched his legs they tended to bleed easily. The physical examination of the legs revealed moderate scaling. Dr. S.S. provided an impression of essential pruritus and xerosis of the legs. The January 2005 VA examination report showed that Dr. S.S. reviewed the claims file. Dr. S.S. noted that the veteran's itching was widespread. Dr. S.S. related that the veteran was treated with Atarax, which controlled the process completely. Dr. S.S. indicated that the examination of the skin revealed completely normal skin. Dr. S.S. maintained that the itching without the Atarax could be intense and any body site might be affected. Dr. S.S. reported that the veteran had xerosis of the legs, mild in degree and essential pruritus. The veteran's disability has been rated by analogy to psoriasis under Diagnostic Code 7816. 38 C.F.R. § 4.20 (2005). Under the old rating criteria of Diagnostic Code 7816, a note provides that disabilities evaluated under codes 7807 through 7819 are to be rated by analogy to eczema under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7816 (2002). The medical evidence shows that the veteran's essential pruritus and xerosis of the legs is productive of itching, but not constant itching as it is controlled well with the use of Atarax as documented. The skin disorder is also not productive of extensive lesions and has not been described as causing marked disfigurement. For these reasons, the Board finds that the veteran's disability does not more nearly approximate the old rating criteria associated with the next higher rating of 30 percent under Diagnostic Code 7806. Under the revised rating criteria of Diagnostic Code 7816, the criteria are the same as provided under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7816 (2005). Here, the predominant disability is the pruritus and xerosis or itching and dry skin. Dr. S.S. observed that the examinations revealed xerosis of the legs, an unexposed area. Thus, between 20 to 40 percent of the veteran's entire body is affected, but not more than 40 percent of his entire body. Additionally, the veteran has been treated for many years with Atarax, so he is not taking systemic therapy. Consequently, the Board finds that the veteran's essential pruritus and xerosis of the legs does more nearly approximate the revised rating criteria associated with the next higher rating of 30 percent under Diagnostic Code 7816, but not the criteria associated with the next higher rating of 60 percent. Accordingly, a 30 percent rating is assigned from August 30, 2002, the effective date of the amended schedule. V. Staged Rating and Extraschedular Rating With regard to the veteran's service-connected essential pruritus and xerosis of the legs, the Board has assigned a staged rating for separate periods of time based on governing law. As for the veteran's hand disability, this disability has not been shown to be manifested by greater than the criteria associated with the rating assigned under the designated diagnostic code during any portion of the appeal period. Accordingly, a staged rating is not in order and the assigned rating is appropriate for the entire period of the veteran's appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999). An increased rating may also be granted on an extraschedular basis when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2005). The Board finds no evidence that the veteran's service-connected dyshidrotic dermatitis of the hands, essential pruritus, and xerosis of the legs presented such an unusual or exceptional disability picture at any time so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2005). Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). VI. Multiple, Noncompensable Service-Connected Disabilities Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, VA may assign a 10 percent rating but not in combination with any other rating. 38 C.F.R. § 3.324 (2005). As compensable evaluations are in effect for service- connected tinea pedis and onychomycosis, bilateral feet, dyshidrotic dermatitis of the hands, essential pruritus, and xerosis of the legs, the veteran is precluded from a rating under this regulation as a matter of law. As the law, and not the evidence, is dispositive on this issue, the claim is denied in the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a disorder manifested by thinning of the penile skin, including as the result of exposure to herbicide agents is denied. A higher initial rating in excess of 10 percent for service- connected dyshidrotic dermatitis of the hands is denied. A higher initial rating in excess of 10 percent for service- connected essential pruritus and xerosis of the legs prior to August 30, 2002 is denied. A higher initial rating of 30 percent for service-connected essential pruritus and xerosis of the legs beginning August 30, 2002 is granted, subject to the law and regulations controlling the award of monetary benefits. (CONTINUED ON NEXT PAGE) A 10 percent evaluation based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 is denied. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs