Citation Nr: 1520748 Decision Date: 05/14/15 Archive Date: 05/26/15 DOCKET NO. 13-04 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 10 percent for recurrent staph infections of the scalp and lateral nasal folds (skin disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2001 to October 2006. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned in a March 2015 video conference Board hearing, the transcript of which is included in the record. Subsequent to the issuance of the December 2012 Statement of the Case, the Veteran submitted additional statements in March 2015, for which a waiver of initial RO consideration was provided. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT The Veteran's skin disability has required the near-constant use of systemic therapy in the form of oral antibiotics during the past 12-month period. CONCLUSION OF LAW The criteria for an initial 60 percent disability rating for service-connected recurrent staph infection of the scalp and lateral nasal folds, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Here, as the appeal decided in this decision arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the disability on appeal, no additional notice is required. The courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (interpreting that separate notification is not required for the "downstream" issue of initial rating); 38 C.F.R. § 3.159(b)(3)(i) (2014) (reflecting that there is no duty to provide VCAA notice upon receipt of a notice of disagreement). With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, post-service private treatment records, and the Veteran's statements, which includes photographs of the Veteran's skin disability. The Veteran was afforded VA skin examinations in June 2011, May 2012, and October 2012. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312. For the reasons discussed in detail below, the Board finds that in combination, the VA examinations are adequate for ratings purposes of the issue on appeal. The VA examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Hence, no further notice of assistance to the Veteran is required to fulfill VA's duties to notify and assist in the development of the claim. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Analysis The Veteran seeks an initial rating greater than 10 percent for his service-connected skin disability, which has been rated by analogy under Diagnostic Codes 7820-7806, the diagnostic code for dermatitis or eczema. 38 C.F.R. § 4.118 (2014). Diagnostic Code 7806 states that dermatitis or eczema that involves 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, is rated 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). A 30 percent rating is warranted under Diagnostic Code 7806 for dermatitis or eczema that involves 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. Id. A 60 percent rating is warranted for dermatitis or eczema that involves 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. Id. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether a disability rating of 60 percent is warranted for the Veteran's skin disability for the entire period on appeal. The evidence includes a June 2011 VA skin examination. During the evaluation, the Veteran reported an onset of red, pustular skin lesions to the nasal folds and scalp during basic training with conservative topical treatment. He reported continued intermittent outbreaks of similar lesions with the same treatment and favorable management. The Veteran also stated that he had an acute exacerbation in 2003 and received treatment with oral antibiotic and topical cream. He reported good resolution on the medications, but stated that he would experience flare-ups as soon as he was off the medication and would be placed on a six month course of oral antibiotics. His treatment since 2007 included scalp/facial wash twice daily, oral antibiotics, and topical creams. The examiner diagnosed the Veteran with recurrent staph infections involving the scalp and lateral nasal folds. In a subsequent May 2012 VA examination report, the Veteran showed the examiner photographs of his face, which revealed scattered pustules around the nose and few on the scalp. It was noted that the Veteran was being treated by a private dermatologist, Dr. Ford, and had been prescribed several antibiotics. The examiner noted that the Veteran "has to be on chronic oral antibiotic in order to keep the lesions under control." The examiner noted that the Veteran had been treated with oral or topical medications for the past 12 months, to include systemic corticosteroid for less than 6 weeks and "constant/near-constant" use of other oral medications (antibiotics). In an October 2012 VA skin examination, the Veteran stated that his skin disorder had improved since his last VA examination in response to two intra-lesional steroid injections in December 2011 and March 2012, and one instance of oral medrol dose pack in December 2011. As in the May 2012 VA examination report, the October 2012 examiner noted that the Veteran had been treated with oral or topical medications for the past 12 months, to include systemic corticosteroid for less than 6 weeks and "constant/near-constant" use of other oral medications (antibiotics). During the March 2015 Board hearing, the Veteran testified that he had been taking antibiotics "nonstop" for years. See Board Hearing Transcript at pg. 4. He also stated that he received some steroid injections. Id pg. 6. Private treatment records from Dr. Ford reveal that the Veteran has been treated for his skin disability since May 2008 and has been treated with oral and topical antibiotics daily since September 2011. See January 2010 treatment note prescribing Bactrim [an antibiotic] (one tablet daily for suppressive therapy for several months); see also treatment notes dated in December 2010 (prescribing Bactrim x 10 days); February 2011 (prescribing Bactrim x 2 weeks); September 2011 (Bactrim 1 tablet, 3 times a day); and March 2012 (clindamycin [an antibiotic] (1 tablet, 4 times a day). Upon careful review of the evidence, the Board finds that a disability rating of 60 percent is warranted for the Veteran's skin disability for the entire period on appeal. The Veteran has required the use of constant or near-constant systemic therapy during a 12-month period (i.e., since September 2011). The Board acknowledges that the Veteran's systemic therapy was not in the form of corticosteroids or immunosuppressive drugs, as described in Diagnostic Code 7806. Importantly, however, Diagnostic Code 7806 only requires "systemic therapy such as corticosteroids or other immunosuppressive drugs." Id. The use of "such as" phraseology suggests that the list of types of systemic therapy is not exhaustive. See, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (holding that with respect to the criteria for rating mental disorders, "[t]he use of the term 'such as' demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). There is nothing in the rating criteria to suggest that systemic antibiotic therapy is insufficient to warrant a rating under Diagnostic Code 7806. See Brown v. Shinseki, 2012 WL 738725 at *3 (March 8, 2012, Vet. App.) (non-precedential) (holding in the context of an appeal concerning the use of systemic antibiotics for a skin disorder that that the use of the phrase "such as" in Diagnostic Code 7806 "is an ambiguously worded regulation that might be interpreted to apply to 'systemic therapy' that is other than immunosuppressive in nature."). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 60 percent rating for recurrent staph infections of the scalp and lateral nasal folds, is warranted. As 60 percent is the maximum schedular rating under Diagnostic Code 7806 and is being assigned for the entire period on appeal, a staged rating is not applicable in this case. The competent medical evidence of record does not show that the Veteran's treatment fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. See Fenderson, 12 Vet. App. 119. Further, the evidence of record does not demonstrate that a higher or separate rating is warranted for the Veteran's skin disability. As noted above, a 60 percent is the maximum schedular rating under Diagnostic Code 7806. Further, the VA examination reports do not suggest that the Veteran has any scars related to his skin disability. See May and October 2012 VA examination reports. Accordingly, the Board finds that a 60 percent rating, but no higher, for recurrent staph infections of the scalp and lateral nasal folds, is warranted. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence in this case does not reflect an exceptional disability picture such that the available schedular evaluations for the Veteran's service-connected skin disability is inadequate. Diagnostic Code 7806 specifically addresses the Veteran's use of near-constant systemic therapy. A comparison between the level of severity and symptomatology of the Veteran's disability as discussed above, with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, including skin lesions and the use of topical and systemic therapy. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence has not shown in this case is that the manifestations of his service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Having reviewed the evidence and the rating assigned, the Board finds that the evidence does not show such an exceptional disability picture to render the schedular evaluation assigned for the tinea pedis disability to be inadequate to rate the Veteran's service-connected disability; therefore, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Further, and according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Finally, a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran testified that his skin disability causes him embarrassment at work and has caused him to miss some work due to pain from his boils on his face, the Veteran has not indicated that he is unable to obtain or sustain substantially gainful employment as a result of his service-connected disabilities. The Veteran testified that he was currently working. See Board Hearing Transcript at pg. 14. Private treatment records also indicate that the Veteran is employed. As such, the Board finds that the issue of TDIU is not raised at this time. ORDER A 60 percent rating, but no higher, for recurrent staph infections of the scalp and lateral nasal folds, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs