Citation Nr: 1002325 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 07-08 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to an increased rating for residuals of intertrigo, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The Veteran had active service from March 1966 to April 1969. These claims come before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The issue of entitlement to service connection for a left knee disorder is REMANDED to the RO via the Appeals Management Center (AMC), and is discussed in the REMAND section of this decision. FINDINGS OF FACT 1. During the course of this appeal, the Veteran's intertrigo necessitated the use of vitamin E oil and topical therapy and involved one to eight percent of his entire body and less than ten percent of the exposed surfaces of his body. 2. The Veteran's skin disability picture is not so exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for residuals of intertrigo, both upper inner thighs, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.20, 4.118, Diagnostic Code 7806 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). In January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. The United States Court for the Federal Circuit (Federal Circuit) reviewed Vazquez-Flores on appeal and held that the statutory scheme did not require the notification noted above. The Federal Circuit explained that the notice described in 38 U.S.C.A. § 5103(a) need not be veteran specific and that daily life evidence was not statutorily mandated. The Federal Circuit thus vacated the Court's decision to the extent it required notification of alternative DCs and the need to submit potential daily life information on the basis that such evidence was not needed for proper claims adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the Veteran VCAA notice on his claims by letters dated January 2006 and April 2006, before initially deciding those claims in a rating decision dated July 2006. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of the notice letters, considered in conjunction with the content of another letter the RO sent the Veteran in May 2008, also reflects compliance with pertinent regulatory provisions and case law, noted above. In the letters, the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. As well, the RO identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c) (2009). The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's increased rating claim. 38 U.S.C.A. § 5103A (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including service and post-service treatment records. The RO also afforded the Veteran VA examinations during which an examiner discussed the severity of the Veteran's service- connected skin disability. Claim for an Increased Rating 1. Schedular According to written statements the Veteran submitted in support of his appeal, his skin disability has worsened, causes pain and burning, affects his thighs, knees, buttocks and underarms and warrants the assignment of, at the very least, a 25 percent evaluation. Allegedly, the Veteran has not received satisfactory treatment for his skin disability so he has been relegated to caring for the condition on his own with no medical guidance. The RO has rated the Veteran's skin disorder, characterized as intertrigo, as 10 percent disabling pursuant to DC 7806, by analogy. When an unlisted condition is at issue, it may be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2009). DC 7806 governs ratings of dermatitis and eczema, a closely related disease with the same functions affected as the intertrigo. DC 7806 provides that a 10 percent evaluation is assignable for dermatitis or eczema with at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is assignable for dermatitis or eczema with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is assignable for dermatitis or eczema with 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. Otherwise, dermatitis or eczema is to be rated as disfigurement of the head, face or neck under DC 7800, or as scars under DCs 7801 to 7805, depending upon the prominent disability. 38 C.F.R. § 4.118, DC 7806. DC 7800 provides that a 10 percent evaluation is assignable when one characteristic of disfigurement appears. A 30 percent evaluation is assignable when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800 (2009). The eight characteristics of disfigurement include: scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour or scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800, Note (1) (2009). DC 7801 provides that a 10 percent evaluation is assignable for such scars when the area or areas exceed 6 square inches (39 sq. cm.). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2009). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1), (2) (2009). DC 7802 provides that a 10 percent evaluation is assignable for area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2009). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2) (2009). Under DC 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2009). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (1), (2) (2009). Under DC 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804 (2009). A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See § 4.68 of this part on the amputation rule.) 38 C.F.R. § 4.118, DC 7804, Note (2) (2009). Other types of scars are to be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2009). Based on these criteria as well as the reasoning noted below, the evidence establishes that the Veteran's skin disability does not more nearly approximate the criteria for an increased evaluation during any period of time at issue in this appeal. Rather, during the course of this appeal, this disability necessitated the use of vitamin E oil and topical therapy and involved one percent of the Veteran's entire body and less than ten percent of the exposed surfaces of his body. The Veteran first received treatment for dermatological problems, including eczematization affecting the ears, right arm and neck and rashes on the hands, face and thighs, during active service in 1968. Medical professionals diagnosed contact dermatitis and neurodermatitis, prescribed ointments, prednisone, and celestone and suggested a mild tranquilizer. Following discharge, from 1975 to 1980, the Veteran continued to receive treatment for dermatological problems, including rashes on the head, neck, arms, wrists, waist, face, chest and back. Medical professionals diagnosed atopic dermatitis and questionable eczema and prescribed prednisone and ointments. The Veteran also underwent VA examinations in July 1980 and March 1998. During the former examination, an examiner noted minute pustular lesions on the Veteran's back, maceration and scaling on the interspaces of the toes, and post-inflammatory scaling of the upper inner thighs. He diagnosed active epidermophytosis, bilaterally, residuals of intertrigo of both upper, inner thighs and mild acne of the back. During the latter examination, the Veteran reported that his skin disability was chronic, recurred, flared up primarily in the groin and thigh areas (typically when the seasons changed or the weather warmed), that he had received VA treatment until 1980, and that since then, he had treated flare-ups on his own by using a mixture of hydrocortisone cream and vitamin E. The examiner noted faint, minimally brown, hyperpigmented, ill-defined patches in the groin with no erythema or scaling. He diagnosed a history of chronic, recurrent dermatitis consistent with eczematous dermatitis and associated intertrigo. Since the Veteran filed a claim for an increased evaluation for his skin disabilities, he has undergone two additional VA examinations, in February 2006 and April 2008, and received private treatment, including medication, for a recurrent fungal condition. During the February 2006 VA examination, the Veteran reported that his skin condition was affecting his groin, underarms, scalp and toes, necessitated the use of vitamin E oil, did not cause systemic symptoms such as fever or weight loss, interfered with his work by causing groin and foot pain, which slowed him down, and required him to take extra time to dry his skin thoroughly and completely. The examiner noted mild xerosis, one millimeter pink papules and hyperpigmented plaques in the groin, and scaling and cracking toes. She initially found that approximately five to eight percent of the Veteran's exposed body surface would be affected depending on the amount of clothing the Veteran was wearing and the time of the year. She then found that approximately zero to less than ten percent of the Veteran's exposed body surface would be affected and that between five and eight percent of the entire body was affected. In April 2008, the Veteran reported that his skin disability had spread to his knees and buttocks, and that he was still using vitamin E oil and also used topical preparations and, occasionally, cortisone cream prescribed by his nurse practitioner spouse. He indicated that, at times, he took off work due to severe burning from the intertrigo plaques. This burning required him to refrain from wearing clothing in the affected areas. The examiner, who evaluated the Veteran in February 2006, noted a minimal amount of flaking on the left inner thigh and scaling on the feet. She found that the intertrigo seen on examination affected approximately one percent (zero percent exposed body surface). In an addendum memorandum dated July 2008, she clarified that the intertrigo was affecting one percent of the Veteran's total body surface and zero percent of the Veteran's exposed body surface. There is no evidence of record reflecting that the Veteran's skin disability, even at its worst during flare-ups, has involved 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas of affected. There is also no evidence reflecting that this disability has necessitated systemic therapy, let alone such therapy for a total duration of six weeks or more. An increased schedular evaluation may therefore not be assigned under DC 7806. 2. Extraschedular & Total Disability Evaluation In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "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) (2009). Under certain circumstances, a claim for a total disability evaluation based on individual unemployability due to service-connected disability(ies) (TDIU) may also be considered a component of a claim for a higher initial or increased evaluation. Jackson v. Shinseki, No. 2009-7015, 2009 WL 4067211, at *3 (Fed. Cir. Nov. 25, 2009); Rice v. Shinseki, 22 Vet. App. 447 (2009). This question arises when a claimant: (1) submits evidence of a medical disability; (2) makes a claim for the highest evaluation possible; and (3) submits evidence of unemployability. In such a case, the evidence and assertion satisfy the requirement of 38 C.F.R. § 3.155(a), which defines an informal claim and indicates that it must "identify the benefit sought", and mandates consideration of whether a TDIU is assignable. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran raises the question of entitlement to an increased evaluation on an extraschedular basis by asserting that his skin disability has caused him to take off from work. Even assuming the rating criteria do not reasonably describe the level of severity and symptomatology of the Veteran's skin disability, however, referral is not mandated. The Veteran's skin disability picture is not so exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Veteran does not contend that this disability affects his employability more than minimally or necessitates frequent treatment, inpatient or otherwise. A TDIU claim may not be considered a component of the claim for an increase evaluation in this case because the Veteran does not assert that he is unemployable and there is no medical evidence or employment information to this effect. 3. Conclusion The rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded an increased evaluation in the future should his skin disability picture change. See 38 C.F.R. § 4.1. At present, however, the aforementioned evaluation is the most appropriate given the medical evidence of record. The Board thus concludes that the criteria for entitlement to an increased evaluation for intertrigo, both upper inner thighs, are not met. In reaching this decision, the Board considered the complete history of the disability at issue as well as the current clinical manifestations and the effect the disability has on the Veteran's earning capacity. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). The evidence in this case is not in relative equipoise. Rather, as a preponderance of the evidence is against a finding that the disability approximates the criteria for a higher evaluation, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.21 (2009). ORDER An increased rating for residuals of intertrigo is denied. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. At the April 2008 VA examination the Veteran reported that he had injured his knee while serving in Vietnam when he fell of a bus and was run over. The Veteran is competent to report this injury. The examiner identified a scar, which she suggested might be related to the reported injury; but reported no indications that the scar met the criteria for a compensable rating. See 38 C.F.R. § 4.118. The Court has held that a scar is not present as a current disability unless shown to a compensable degree. Chelte v. Brown, 10 Vet. App. 268 (1997). The examiner also reported, however, that the Veteran had complaints of occasional numbness and pain in the knee. Evaluation of these complaints appears to have been beyond the scope of the skin examination. An examination is needed to determine whether there are any current residuals of the reported in-service injury. Accordingly, the appeal is REMANDED for the following actions: 1. The Veteran should be afforded an examination to determine whether he has any current residuals of the left knee injury he reportedly sustained in service. The examiner should review the claims folder and note that such review was undertaken. Any indicated testing should be conducted. The examiner should then provide an opinion as to whether any current left knee disability is a residual of the left knee injury the Veteran reportedly sustained in service. The examiner should provide a rationale for these opinions. If the examiner is unable to provide an opinion without resort to speculation, the examiner should explain why this is so. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the opinions. 2. If any benefit sought on appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case, and then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2009). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs