Citation Nr: 1524526 Decision Date: 06/09/15 Archive Date: 06/19/15 DOCKET NO. 13-35 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a higher initial rating for residuals of recurrent staph infections, currently rated as noncompensably disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to October 2000, May 2003 to December 2003, January 2004 to March 2005, and April 2009 to June 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2011; a statement of the case was issued in November 2013; and a substantive appeal was received in December 2013. The issues of entitlement to service connection for a back disability and entitlement to service connection for a right knee disability as secondary to a back disability have been raised by the record in a September 2014 correspondence (VBMS), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT The Veteran's residuals of recurrent staph infections are not manifested by scars on the head, face, or neck with one of the characteristics of disfigurement; deep and nonlinear scars that encompass an area or areas of at least 6 square inches but less than 12 square inches; superficial and nonlinear scars that involve an area or areas of 144 square inches or greater; unstable or painful scars; scars with other disabling effects; an infection encompassing at least five percent, but less than 20 percent of the entire body, or at least five 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. CONCLUSION OF LAW The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected residuals of recurrent staph infections have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 7820, 7800-7806 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In August 2010, January 2011, and August 2011 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2014) and 38 C.F.R. § 3.159(b) (2014). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2014). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2014). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given a VA examination in September 2011, which is fully adequate. The examiner reviewed the claims file in conjunction with the examination, and addressed the relevant rating criteria. The duties to notify and to assist have been met. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The Veteran's service-connected residuals of recurrent staph infections has been rated by the RO under the provisions of Diagnostic Code 7820. Pursuant to this regulatory provision, infections of the skin (including bacterial, fungal, viral, treponemal, and parasitic diseases) are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806) depending on the predominant disability. Diagnostic Code 7800 addresses scars of the head, face, or neck. A 10 percent rating is warranted when the Veteran experiences one of the following characteristics of disfigurement: scar of 5 inches or more (13 or more cm.) in length; scar at least one quarter inch (0.6 cm.) wide at its widest part; surface contour of 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, Diagnostic Code 7800 (2014). Diagnostic Code 7801 concerns deep and nonlinear scars. A 10 percent evaluation is warranted for a deep and nonlinear scar that encompasses an area or areas of at least 6 square inches but less than 12 square inches. Diagnostic Code 7802 concerns scars that are superficial and nonlinear. A 10 percent rating is warranted for a superficial and nonlinear scar that involves an area or areas of 144 square inches or greater. Diagnostic Code 7804 provides for a 10 percent evaluation for a scar that is unstable or painful. Diagnostic Code 7805 instructs the rater to evaluate any other disabling effects not considered under Diagnostic Codes 7800-7804 under an appropriate code. Diagnostic Code 7806 is used to evaluate dermatitis or eczema. The rating criteria provide for evaluation based upon the frequency of treatment and the percentage of the body that is affected by the disability. A noncompensable evaluation contemplates less than five percent of the entire body or less than five percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent evaluation is warranted for cases with at least five percent, but less than 20 percent of the entire body, or at least five 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 assigned in cases of 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 warranted in cases of 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. Treatment reports reflect that in August 2009, the Veteran reported an insect bite to his right leg that caused soreness. There were no other symptoms. Upon examination, the examiner noted a methicillin-resistant staphylococcus aureus (MRSA) type infection with swelling and inflammation of the posterior of the right thigh. It was tender to palpation. It was not close enough to the surface for incision and drainage (I&D). He was prescribed Bactrim twice per day for 10 days. In March 2010, the Veteran sought treatment for a rash over the right axilla without any signs of infection. The assessment was contact dermatitis and he was prescribed hydrocortisone topical ointment. Reports from Ferguson Medical Group reflect that on October 23, 2010, the Veteran sought treatment for a pustule on the back of his head (of two days duration) that was causing the back of his neck to hurt (Virtual VA Document 25, 1/12/11). Upon examination, the Veteran had a 3 centimeter, dome-shaped area that had a central, 5 mm. scab on it. It was not draining and did not feel fluctuant at all. The examiner prescribed Bactrim twice per day. Four days later, (October 27) Dr. W.C.B. (of Ferguson Medical Group) noted that the Veteran was seen in the emergency room over the weekend and an I&D was performed. Upon examination, the Veteran had a draining abscess to the posterior scalp. Dr. W.C.B. had the Veteran off work until November 1, 2010. On November 1, Dr. W.C.B. noted that the abscess had nearly completely resolved and that the Veteran could return to work. Records from Saint Francis Medical Center noted similar findings. VA outpatient records reflect that in December 2010, the Veteran reported that he was taking Septra for a vesicular rash with a history of MRSA (Virtual VA, Document 3, 11/28/13). He reported that he developed dry, scaly, mild, erythematous, mildly pruritic rash to the supraorbital area bilaterally. He stated that the rash slowly resolved, but not completely. Upon examination, he had a slightly edematous, scaly, rash affecting the upper eyelids. The etiology was unclear; but the examiner noted that it could be xerosis versus true allergy to Septra (pg. 4-5). In January 2011, the Veteran reported bumps under the left axilla (Virtual VA, Document 3, 11/28/13, pgs.8-9). He stated that one popped and had slight drainage, and then two more appeared. He also reported redness across his abdomen. Upon examination, the examiner noted a 1 cm. hard, erythematous nodule under the Veteran's left arm with 3 very small white heads nearby. He was assessed with a sebaceous cyst. Later that month, he was noted to have a hard, red, scabbed cyst on the left side of his chest. It was very warm and tender to touch. There was no active drainage. In September 2011, the Veteran had a mildly pruritic raised bump on his posterior scalp (Virtual VA, Document 3, 11/28/13, p. 14). He was noted to have had staphylococcal skin infections. The examiner advised the Veteran to use Bactroban cream, twice per day for five days. The examiner found no reason to need systemic antibiotics. The Veteran underwent a VA examination in September 2011. The examiner reviewed the claims file in conjunction with the examination. Upon examination, the Veteran's skin was warm, dry, and intact. He reported recurrent staph infections with scarring. The examiner noted three scars. The first was on the upper chest. It measured 1 cm. in diameter. There were no adhesions, pain, or skin breakdown. It was well healed. The second scar was on the occiput. It measured 3 cm. in diameter with a 1 cm. central scar. It was well healed. There were no adhesions and no pain. The third scar was on the posterior thigh. It started out as a 4 cm. abscess. It was surgically excised and there was a 1 cm. linear scar on the posterior thigh. It was well healed with no adhesions or pain. In January 2012, the Veteran reported a skin infection on the back of his ear (Virtual VA, Document 3, 11/28/13, pgs. 16, 21). He stated that it was painful to touch. Upon examination, the Veteran had dry skin behind the right ear with silver scaling and with linear distribution. He also had dry skin on this elbows and the knuckle of third digit right hand. He was advised to continue with Bactroban and Chlorhexidine as needed for boils or other pustules; and to use over the counter lotions for dry skin. In February 2013, the Veteran reported some bumps noted on the side of his nose, jaw area, and hands (Virtual VA, Document 3, 11/28/13, p. 30). He reported that he used soap and some cream without any relief. He was assessed with folliculitis and probable MRSA. In April 2013, the Veteran presented with a skin rash on his groin inguinal area (Virtual VA, Document 3, 11/28/13, pgs. 30-32). It appears that is was unrelated to his staph infections insofar as the Veteran was advised not to use chlorhexidine as it would make it worse. In May, the rash was noted to be fungal in nature (p. 33). In the Veteran's December 2013 appeal (VA Form 9), he stated that he continued to use mupirocin/chlorhexidine and Bactroban when he notices signs of MRSA. He stated that he no longer goes to the hospital because he has the creams at home and is able to refill them by calling the clinic. Analysis The Board recognizes that the Veteran continues to experience flare-ups of MRSA. However, his disability is not manifested by symptoms that yield a compensable rating. The Veteran's three scars (on the upper chest, back of head, and posterior thigh) were well healed. They were not unstable, painful, deep, or involve an area or areas of 144 square inches or greater. The scar on the back of the head did not cause any of the 8 characteristics of disfigurement. The scars did not encompass at least five percent, but less than 20 percent of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected. Finally, though the Veteran continues to use various creams for the treatment of outbreaks, the disability does not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Furthermore, the reported flare-ups have not risen to a level that would satisfy the criteria for a compensable rating. In the Veteran's December 2011 notice of disagreement, he stated that he missed two weeks of work in October 2010 as a result of a staph infection on the back of his head and associated pain. The Board notes that the sick notes that he submitted reflect that on October 27, 2010, he was advised not to work until November 1, 2010. A November 1, 2010 note reflects that the Veteran was able to return to work without restrictions. The Board notes that the sick notes do not reflect two weeks of missed work. However, even if the Veteran was out for two weeks, this would not be sufficient for a rating beyond the applicable rating criteria. As is explained below, extraschedular ratings can be approved for "exceptional or unusual disability picture with such related factors as marked interference with employment." [Emphasis added]. However, this question is only reached if the rating schedule is deemed inadequate to evaluate the disorder in question. Finally, considering Diagnostic Code 7806, the Board acknowledges that the Veteran has been prescribed corticosteriods such as hydrocortisone. However, such drugs were prescribed topically- systemic therapy is required for a compensable evaluation under this diagnostic code. Extraschedular Ratings Pursuant to 38 C.F.R. § 3.321(b)(1) (2014), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "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." The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Initially, there must be a comparison between the level of severity and symptomatology of a 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), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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 are marked interference with employment and frequent periods of hospitalization). The rating criteria fully contemplate the Veteran's disability as noted above, his symptomatology has consisted of three well healed scars and flare-ups of the disability. The severity of the scars and flare-ups are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a compensable rating for residuals of recurrent staph infections is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs