Citation Nr: 0724165 Decision Date: 08/03/07 Archive Date: 08/15/07 DOCKET NO. 02-10 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for eczema of the hands, arms and elbows, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to Vocational Rehabilitation and Employment services under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from January 1984 to June 1989. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of February 2002 and July 2002 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2004, and again in February 2006, the Board remanded the veteran's claims for additional development. Following further development of the record, the Appeals Management Center (AMC) continued its denial of the veteran's claims and returned these matters to the Board. A review of the veteran's vocational rehabilitation file reflects that in a June 2002 determination, the RO denied the veteran's application for Vocational Rehabilitation and Employment services. In November 2002, the veteran filed a notice of disagreement (NOD). The Board notes that the RO has not issued a statement of the case (SOC) in response to the veteran's NOD. Consequently, the Board does not have jurisdiction to review the issue. See 38 C.F.R. §§ 20.200, 20.202 (2006). Nevertheless, the issue will be remanded with instructions to issue an SOC. FINDINGS OF FACT 1. Under the criteria in effect prior to August 30, 2002, the veteran's eczema of the hands, arms and elbows has not been manifested by ulceration or extensive exfoliation or crusting, systemic or nervous manifestation; nor is the skin disorder exceptionally repugnant. 2. Under the criteria in effect since August 30, 2002, the veteran's eczema of the hands, arms and elbows has required constant or near-constant systemic therapy with immunosuppressive drugs during a 12-month period. 3. The veteran's service-connected eczema of the hands, arms and elbows is of such nature and severity as to prevent him from securing or following any substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating to 60 percent for eczema of the hands, arms and elbows have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2006). 2. The veteran is unemployable as a result of his service- connected disability. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.15, 4.16(b) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to render a decision on the veteran's claims on appeal has been accomplished. In this respect, through April 2002, May 2004, and February 2006 notice letters, the veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board also finds that the notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It also requested that the veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Furthermore, the veteran was requested to submit relevant evidence in his possession in support of his claims. Also as regards to VA's notice requirements, the Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. Although the complete notice required by the VCAA was not provided until after the RO initially adjudicated the veteran's claims, the veteran was provided the content- complying notice to which he was entitled. Pelegrini, 18 Vet. App. at 122. Consequently, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to VA's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. Here, following the notice letters to the veteran, his claim was readjudicated in April 2007. See Medrano v. Nicholson, ___ Vet. App. ___ 2007 WL 1201524, citing Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (in order to cure a VCAA notice timing defect, a compliant notice must be issued followed by the readjudication of the claim.). The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claims decided herein. Identified VA treatment records are associated with the claims file, and the veteran was provided a VA examination in October 2006 to assess the severity of his service-connected disability. Otherwise, neither the veteran nor his representative has identified, and the record does not otherwise indicate, existing records pertinent to the claims that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Higher Rating for Eczema of the Hands, Arms, and Elbows Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran is currently receiving a 30 percent rating for eczema of the hands, arms and elbows. The skin disorder is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 for eczema. The veteran filed his claim for an increased rating in January 2002. During the course of this appeal, the criteria for evaluating skin disorders were amended by a final rule that became effective on August 30, 2002. See 67 Fed. Reg. 49,590 (July 31, 2002). The veteran was provided notice of the amended changes to the rating schedule, and the RO has evaluated the veteran's eczema of the hands, arms and elbows under both the former and revised versions of the rating criteria for skin disorders (see August 2003 SOC). The Board will apply both the former and revised criteria to the veteran's claim. However, the revised criteria may not be applied to any time period prior to the effective date of the change. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000. The provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002), allow for a 30 percent rating if there is exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating is assigned if there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestation, or if the disability is exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective prior to Aug. 30, 2002). A 50 percent rating is the highest available rating under diagnostic code 7806 in effect prior to August 30, 2002. A review of the medical evidence of record leads to a conclusion that the veteran does not manifest symptoms that would warrant a higher disability rating under the former rating criteria. In this case, the veteran's eczema of the hands, arms and elbows has been noted as severe, and includes keratotic scaling plaques, crusting, confluent erythema, in addition to desquamation with prominent fissuring and erosions. However, none of the outpatient treatment records or dermatological examination reports reflect that the veteran's skin disease has resulted in systemic or nervous manifestations, or that it is exceptionally repugnant. Therefore, notwithstanding the veteran's complaints, the Board finds that the veteran's eczema of the hands, arms and elbows does not more nearly approximate the criteria for a rating to 50 percent under the old criteria. Thus, the veteran's service-connected skin disorder is properly rated as 30 percent disabling for constant exudation or itching, extensive lesions, or marked disfigurement under the rating criteria for skin disabilities in effect prior to August 30, 2002. Pursuant to the revised criteria in effect since August 30, 2002, under Diagnostic Code 7806, a 30 percent rating is warranted 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. For a 60 percent rating, the evidence would need to show 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective August 30, 2002). A 60 percent rating is the highest available rating under this version of diagnostic code 7806. Here, the medical evidence simply does not reflect that the veteran's eczema the both hands, arms and elbows affects more than 40 percent of his entire body or more than 40 percent of exposed areas. In the report of October 2006 VA examination, the examiner noted that the veteran's eczema of the hand, arms and elbows affected greater than 5 percent but less than 20 percent of exposed areas, and less than 5 percent of the veteran's total body area. However, the Board does find that the medical evidence demonstrates constant or near-constant systemic therapy (oral medications and subcutaneous injections) consisting of immunosuppressive drugs required during the past 12-month period. In this case, the evidence of record documents that between September 2002 and April 2005, the veteran was receiving systemic therapy with immunosuppressant drugs. The drugs were administered orally or by injection and were noted to be cyclosporine (Gengraf), methotrexate, etanercept (Enbrel), and adalimumab (Humira). From April 2005 to March 2006, the medical evidence does not reflect whether the veteran was treated for eczema, but when he again was treated later in March 2006, his condition was apparently severe enough to again warrant systemic immunosuppressant therapy with Humira. In the report of October 2006 VA examination, the veteran was noted to be taking both Humira and methotrexate. Therefore, during the appeal period, and resolving reasonable doubt in the veteran's favor, especially with respect to the severity of his problem during times when not treated with immunosuppressants, the medical evidence reflects that the veteran's disability was severe enough to require near- constant systemic therapy with immunosuppressant drugs. As such, under the revised rating criteria, the veteran's eczema of the hands, arms and elbows warrants a 60 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806 (2006). III. TDIU The Board notes that TDIU may be awarded where the schedular rating is less than total and when it is determined that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2005). Under § 4.16(a) if there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more disabilities, at least one of those disabilities must be rated at 40 percent or more, and the total combined rating must be 70 percent or more. Disabilities of one or both of the lower extremities may be considered as one disability in applying the provisions of § 4.16(a). In this case, the veteran's only service-connected disability is his eczema of the hands, arms and elbows. As noted above, the Board has awarded a 60 percent rating for eczema of the hands, arms, and elbows. Thus, the veteran meets the minimum requirements for consideration under 38 C.F.R. § 4.16(a). The veteran filed his claim for a TDIU in January 2002. In a VA Form 21-8940 (Veteran's Application For Increased Compensation Based on Unemployability), the veteran identified having worked on and off between December 1995 and October 2001. In particular, from December 1995 to November 2000, the veteran held jobs as a restaurant manager. From November 2000 to January 2001, the veteran worked as an electrician's helper. From January 2001 to October 2001, the veteran managed a convenience store. A review of the medical evidence of record reflects a March 2002 VA clinical record which noted the examiner's report that the veteran was unable to perform any work in food service involving the use of tools or any duties involving significant use of his hands, and that this would be the case for three months. An April 2002 VA clinical record notes that the veteran, in terms of a vocation, would be unable to handle any volatile material. In addition, he was unable to use his hands to perform any type of manual duties that involved carrying or any type of repeated friction to the hands. In May 2002, the veteran was notified that a VA rehabilitation counselor had determined that he was not a feasible candidate for vocational rehabilitation due primarily to his service-connected eczema of the hands, arms and elbows. In this regard, a May 2002 VA memorandum regarding the veteran's feasibility for the program notes the following: [The veteran's] work history consisted of maintenance, mechanic, truck driving and fast food industry. These occupations involved heavy use of ones hands which is no longer possible due to the severity of his hand condition . . . I do not feel that his current level of functioning is at a level where we could expect probable job success. He has difficulty with any activities involving the use of his hands to include brushing his teeth, eating, driving, getting dressed, bathing, writing, [and] typing. In August 2002, the veteran was medically examined for purposes of Social Security Administration (SSA) benefits. The examiner at that time reported that as a result of his eczema, the veteran would have a difficult time using his hands. A report of March 2003 VA examination reflects the veteran's report that his skin condition became worse in 1997, and that an increase in symptoms comes in cycles, but that since September 2001 the lesions had been severe on both hands. The examiner noted that the veteran did have some impairment of occupational functioning due to his hands. A subsequent report of October 2004 VA examination reflects the examiner's opinion that it was more likely than not that the veteran was unable to sustain gainful employment secondary to his service-connected eczema. In February 2006, the Board remanded the issue of TDIU for an additional medical opinion. The Board noted in its remand that subsequent to the report of October 2004 VA examination, clinical records dated in December 2004 and January 2005 reflected that the veteran was having increased symptomatology associated with his skin disease of his hands related to repair work and renovations he was undertaking at his home. Thereafter, in a report of October 2006 VA examination, the examiner, a physician's assistant, noted that he had reviewed the veteran's claims file. He noted the veteran's report that his eczema of the hands, arms and elbows was manifested by monthly flair-ups consisting of cracking and bleeding of both hands and fingers. The symptoms would last for three weeks. The examiner noted that the veteran had some less symptoms for about one week per month. Following a clinical evaluation, the examiner opined that it appeared that the veteran's eczema of the hands, arms and elbows prevented the veteran from being gainfully employed either physically or sedentarily. In this regard, the examiner explained that the veteran required constant systemic immunosuppressive treatments, he had constant pain and discomfort in his hands, and that if he used his hands, then the palms of both hands would begin to bleed. The Board is aware that medical examinations need not be conducted by physicians. See Cox v. Nicholson, 20 Vet. App. 563 (2007). However, an examination conducted by a physician's assistant must be supervised by a physician. With respect to the report of October 2006 VA examination, only the examining physician's assistant sign the examination report. Nevertheless, the findings and opinion of the physician's assistant are consistent with other noted findings and opinions previously obtained from VA physicians. Thus, the Board finds the report of October 2006 VA examination probative of the claim on appeal. In the instant case, in light of the severity of the veteran's service-connected eczema of the hands, arms and elbows and the flair-up of the disorder and associated pain when the veteran uses his hands, the Board finds that the veteran cannot secure or follow a substantially gainful occupation requiring use of his hands. In this regard, the medical evidence of record raises a reasonable doubt as to whether the veteran's service-connected eczema of the hands, arms and elbows precludes him from a gainful occupation. Furthermore, the Board finds compelling that a vocational- rehabilitative assessment did not find the veteran a viable candidate for vocational training. It is also evident that the veteran lacks skills or education beyond what is required for employment in a profession that would possibly require a limited use of a person's hands in performing his job. While the Board is aware that the veteran's disability did not preclude him from performing repairs and renovations on his home for a period of time, it is telling that such work resulted in an increase in symptomatology of the veteran's eczema of his hands. Thus, it would appear that frequent flair-ups would occur on a regular basis in a profession requiring the veteran to use his hands. Thus, given the severity of his disability, his vocational and educational experiences, and with reasonable doubt resolved in the veteran's favor, total disability for compensation based on unemployability of the veteran is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.16(b). ORDER In accordance with rating criteria that became effective August 30, 2002, a rating to 60 percent for eczema of the hands, arms and elbows is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to a TDIU rating is granted, subject to the regulations governing the payment of monetary benefits. REMAND As noted in the Introduction above, in November 2002, the veteran filed an NOD with the denial of his application for Vocational Rehabilitation and Employment services. By filing an NOD, the veteran has initiated appellate review of that claim. The next step in the appellate process is for the RO to issue to the veteran an SOC summarizing the evidence relevant to that issue, the applicable legal authority, and the reasons that the RO relied upon in making its determination. See 38 C.F.R. § 19.29 (2005); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). The Board notes that this issue was previously remanded in February 2006 for an SOC. In an April 2007 supplemental statement of the case (SSOC), the AMC noted the following: A review of the case folder failed to find a notice of disagreement denial of vocational rehabilitation as indicated in the Remand (Page 2). The August 2002 VA Form (Appeal) indicated disagreement with the denial for TDIU. None of the documents reviewed addressed disagreement of denial of vocational rehabilitation. . . . . In view of the lack of a disagreement for [the] denial of vocational rehabilitation, no Statement of the Case (SOC) was issued for denial of vocational rehabilitation. As noted in the February 2006 remand, the November 2002 NOD was located in the Vocational Rehabilitation file. The AMC notes only that it reviewed the "case folder." Thus, the Board is not exactly sure whether the "case folder" included review of the Vocational Rehabilitation file. Nevertheless, another review of the Vocational Rehabilitation file continues to reflect a VA Form 21-4138 (Statement in Support of Claim) in which the veteran disagrees with the denial of his application for Vocational Rehabilitation and Employment services. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the claim for Vocational Rehabilitative and Employment services must be remanded to the RO for the issuance of an SOC as to that issue. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a substantive appeal must be filed after an SOC is issued by the RO. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2006). In view of the foregoing, this matter must be REMANDED for the following action: The RO should issue to the veteran and his representative an SOC addressing the claim for entitlement to Vocational Rehabilitation and Employment services under the provisions of Chapter 31, Title 38, United States Code. Along with the SOC, the RO must furnish to the veteran and his representative a VA Form 9 (Appeal to Board of Veterans' Appeals) and afford them the applicable time period for perfecting an appeal to this issue. (The veteran and his representative are hereby reminded that appellate consideration of this claim may be obtained only if a timely appeal is perfected.) If, and only if, the veteran files a timely appeal, this issue should be returned to the Board. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs