Citation Nr: 1601436 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 08-16 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable initial disability rating for seborrhea, initially claimed as a rash on the back. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for bilateral glaucoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to March 1986 and from November 2003 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August and September 2014 rating decisions, the Appeals Management Center (AMC) granted service connection for allergic rhinitis. This represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. In March 2014, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); Dymant v. West, 13 Vet. App. 141 (1999). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for PTSD and glaucoma are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's seborrhea affects less than 5 percent of total body area or exposed body area; and systemic therapy such as corticosteroids were not prescribed. CONCLUSION OF LAW The criteria for an initial compensable rating for seborrhea have not been met or approximated. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In August 2006, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice required for the initial claim of service connection a rash on his back. Service connection was subsequently granted for minimal seborrhea, and the Veteran appealed the assigned a noncompensable rating, effective November 26, 2005. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case. Neither the Veteran nor his representative alleges such prejudice in this case. Therefore, no further notice is needed. Regarding the duty to assist, VA obtained the Veteran's VA treatment records. The Veteran was also afforded VA examinations in May 2007, May 2012 and July 2014, with no subsequent medical evidence or lay statements suggesting a worsening since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). The Veteran alleged that the May 2007 and 2012 examinations were conducted while his skin condition was inactive. Therefore, the Board remanded the matter to afford the Veteran an examination during the active stage of his disease - the summertime. The Veteran was afforded a VA examination in July 2014 where the examiner noted the Veteran's statements and gave an assessment of the current severity of his disability. The Board notes that in September 2014, the Veteran alleged that the July 2014 examiner did not consider all of the areas of irritation. However, upon review of the examination report, the Board finds that the examiner adequately addressed all areas of concern. Therefore, the Board finds that the examination is adequate for rating purposes. Accordingly, the Board finds that the VA has met its duty to assist and will address the merits of the claim. II. Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 (2015). Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991). III. Increased Rating for Seborrhea The Veteran's seborrhea is rated by analogy under Diagnostic Code 7899-7806. There is no diagnostic code for seborrhea. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the Veteran's seborrhea is rated by analogy, using the criteria for dermatitis under Diagnostic Code 7806. Diagnostic Code 7806 provides a 0 percent rating when less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating requires that 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 rating requires 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 rating requires 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2015). Corticosteroids that are applied topically are not considered systemic for VA purposes. See generally, Perkins v. Peake, 2008 WL 24463312 (June 11, 2008). Additionally, under Diagnostic Code 7806, dermatitis can also be rated as disfigurement of the head, face, and neck under Diagnostic Code 7800 or for scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. Id. The Veteran was afforded a VA examination in May 2007 where he reported that he had an itchy rash across his back and forehead "for years." He reported that for the past 3 years, he had been treating the rash with an unknown topical medication. The Veteran denied any oral medication for his skin condition and reported that he had not received a specific diagnosis. On physical examination, the examiner noted that the skin on the Veteran's back was normal and that he had minimal seborrhea on the top of his forehead, at his hairline. No skin breakdown was noted. The examiner noted that the Veteran's seborrhea affected less than 1 percent of his total body surface. At the November 2011 travel Board hearing, the Veteran testified that his rash was worse in the summertime and that he had 4 outbreaks already that year. See Board hearing transcript, p.11. He testified that he treated the rash with topical cream and had never treated it with steroids or oral medications. In April 2012, the Board remanded the matter to afford the Veteran an examination during the active stage of his condition - the summertime. The Veteran was afforded a VA examination in May 2012 where the examiner noted that the Veteran had a skin condition of eczema. The Veteran reported that he experienced ongoing itching and used a topical cream to treat his rash. He reported that the areas affected were his forehead, near hairline and central back, between his shoulder blades. The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face or neck. The examiner also noted that the Veteran had been treated with topical corticosteroids for 6 weeks or more, but not constantly. On physical examination, the examiner noted that the Veteran's eczema affected less than 5 percent of his total body area and exposed area. Specifically, the examiner noted that the Veteran had a scaly patch measuring approximately 8 by 8 centimeters on his central back and scale along his hairline. The examiner noted that the total area covered by small areas of scale is 14 by 2 centimeters, but only 50 percent of that area was affected. There was no erythema of the skin or scarring or disfigurement. The examiner opined that the Veteran's skin condition did not impact his ability to work. Since the Veteran was not afforded a VA examination during the summertime, as directed by the Board's previous remand, the Veteran was afforded another VA examination in July 2014, during the active stage of disease. The examiner noted that the Veteran had a skin condition of dermatitis or eczema, specifically diagnosed as seborrhea. The Veteran reported that the location of his skin condition was on his back and forehead, and sometimes on his chin and back of legs. He also reported that the rash caused him itch. The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face or neck or cause any systemic manifestations, such as fever or weight loss. The examiner also noted that the Veteran treated his skin condition with oral medication (Mupirocin) and topical corticosteroids (Betamethasone, Ketoconazole and Triamcinolone) for a duration of 6 weeks or more, but not constantly. On physical examination, the examiner noted that less than 5 percent of the Veteran's total body area and exposed area was affected by the seborrhea. Specifically, the examiner noted that there were lesions on the Veteran's forehead and back and dry scaly patches on the back of the Veteran's legs. In regard to functional impairment, the examiner noted that the Veteran's skin condition impacted his ability to work because the rash was itchy and uncomfortable when present. In a September 2014 correspondence, the Veteran stated that the July 2014 examiner did not include his "forehead and chin areas with the total body areas being affected." He further stated that the rashes itch, without relief from medication, and have "become a permanent irritation since 2004." He also states that the rash "forms scars, a recurrence lesion that has remained visible." He attached photographs of his affected area which appear to show red and white marks on the left and right top of forehead and another mark closer to the Veteran's hairline. At a February 2015 emergency room visit, the Veteran reported that he had a rash on his forehead that "comes and goes." Applying the relevant diagnostic criteria to the medical evidence, the Board finds that the Veteran's service-connected seborrhea does not meet the criteria for a compensable rating. See 38 C.F.R. § 4.118, DC 7806. The evidence shows that the seborrhea affects less than 5 percent of the entire body and less than 5 percent of exposed areas. In addition, the Veteran treats his symptoms with no more than topical therapy and has no history of taking corticosteroids or immunosuppressive drugs. Although the Veteran stated that the July 2014 examiner did not consider all areas affected, the Board finds that the examiner addressed all areas which showed irritation. The examiner noted all areas, with the exception of the Veteran's chin. However, while the Veteran claimed he had irritation on his chin, his enclosed pictures did not support his assertion. Therefore, the Board finds the July 2014 examination report to be probative regarding the issue of what percentage of the Veteran's body is affected by the skin condition. While the Veteran's disability is also ratable based on disfigurement or scarring, as noted in the evidence described above, no disfigurement of the head, face, or neck has been shown, and there has been no indication that the Veteran experiences any scarring. The Board notes that in a September 2014 correspondence, the Veteran alleged that his rash "forms scars, a recurrence lesion that has remained visible." However, the Board credits the July 2014 examination report which indicates that the Veteran had no scarring or disfigurement of the head, face or neck. The examiner is competent to assess whether the Veteran's condition caused any scars or disfigurement. It is reasonable to infer that if the Veteran's condition had been in existence for quite some time, then any scarring would have been evident at any of the Veteran's VA examinations. However, none of the examiners noted any scarring. The Board therefore finds the Veteran's statement regarding the existence of scars to not be credible. In light of the probative evidence showing that the disorder affects less than 5 percent of the entire body and exposed areas and requires no more than topical therapy, the preponderance of the evidence is against finding that the disorder warrants a compensable rating. Therefore, the Board finds that the Veteran's current rating appropriately represents his disability and an increased rating is not warranted. IV. Extraschedular Consideration The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the Veteran's skin disorders, the Veteran's topical treatment of less than 5 percent of his total body is clearly contemplated by the rating schedule. Therefore, the available schedular evaluations are adequate to rate this disability. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. V. Total Disability Rating Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009)(citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). However, the holding of Rice is inapplicable here because the evidence of record indicates the Veteran is working. There is no competent evidence that the Veteran's service-connected disabilities prevent him from obtaining and maintaining gainful employment-nor has the Veteran so contended. Although the July 2014 VA examiner noted that the Veteran's condition may impact his ability to work, the explanation accompanying such statement, namely, the Veteran's itchy rash is uncomfortable, does not rise to the level of evidence of unemployability. At this point, therefore, there is no cogent evidence of unemployability due to a service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. ORDER Entitlement to an initial compensable rating for seborrhea is denied. REMAND In October 2014, the Veteran filed a Notice of Disagreement (NOD) with the denial of his claims for PTSD and glaucoma. The RO has not issued a Statement of the Case in response to the NOD. Where a claimant files a notice of disagreement, and the RO has not issued a Statement of the Case (SOC), the issue must be remanded to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case that addresses the issues of entitlement to service connection for PTSD and glaucoma. (The Veteran filed a NOD in October 2014 to the August 2014 rating decision). Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran perfects the appeal, return the case to the Board The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs