Citation Nr: 0810796 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-19 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disease of the lumbar spine. 2. Entitlement to a rating in excess of 10 percent for atopic eczema and active candidiasis. 3. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from October 1962 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to increased ratings and declined to reopen the veteran's claim for service connection for diabetes mellitus. A timely appeal was perfected with respect to that decision. A hearing on these matters was scheduled to be held before a Veterans Law Judge sitting at the RO on July 31, 2007. However, the veteran did not appear for his scheduled hearing. Thus, the matters have been certified to the Board for decision. The issues of service connection for diabetes mellitus and entitlement to a disability evaluation in excess of 20 percent for degenerative disease of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Atopic eczema and active candidiasis affect less than 5 percent of the exposed area. There is no evidence of intermittent systemic therapy with corticosteroids or other immunosuppressive drugs over the past 12 months. 2. An April 1999 rating decision denied service connection for diabetes mellitus on the basis that no evidence had been submitted showing in-service incurrence of the disorder or a manifestation of it within one year of discharge; the veteran did not file a timely appeal following appropriate notice, and that decision became final. 3. Presuming its credibility, evidence received since April 1999 relates to an unestablished fact necessary to substantiate the veteran's claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for atopic eczema and active candidiasis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806 (2007). 2. An April 1999 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 4. Evidence received since the April 1999 rating decision is new and material, and the veteran's claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated January 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim for an increased evaluation; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. The notice requirements for new and material evidence claims set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) were met by the January 2005 letter. In March 2006, the veteran was notified of the way initial disability ratings and effective dates are established. The Board notes that fully satisfactory notice was not delivered after the claims had been adjudicated. However, the RO subsequently readjudicated the claims based on all the evidence in May 2005. The veteran was able to participate effectively in the processing of his claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. According to Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), in an increased-compensation claim, 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. Further, if the Diagnostic Code 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 of 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, 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 also 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; for example, 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. In this case, the veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the veteran's service-connected atopic eczema and active candidiasis since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The July 2003 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Accordingly, the Board finds that essential fairness was maintained in this case since VA has obtained all relevant evidence. Thus, although there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his increased rating claim. The duties to notify and assist have been met. New and Material Evidence An April 1999 rating action denied service connection for diabetes mellitus on the grounds that the evidence showed no symptoms of diabetes mellitus in service and no manifestations of the disorder within one year of discharge. The veteran did not file a notice of disagreement within a year of the April 1999 decision and it became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). The evidence of record in April 1999 included service medical records that are negative for complaints or treatment of diabetes mellitus. There was no separation examination on file. A VA clinical note dated April 1974 appears to note that the veteran had no history of diabetes mellitus. A June 1974 urinalysis was normal. In January 1999, the veteran filed a claim for service connection for diabetes mellitus. In correspondence dated February 1999, the veteran was asked to provide evidence showing continuous existence of diabetes mellitus since discharge. There was no response. The veteran received a VA examination in February 1999. The veteran indicated that he had been hospitalized on several occasions for diabetes mellitus and that he saw a doctor for the disorder approximately 4 times a year. He took oral medications to control his diabetes. He was not insulin- dependent at that time. His blood sugar was elevated at 252. The diagnoses included diabetes mellitus. There was no medical or lay evidence indicating that the veteran's diabetes symptomatology began in service or within one year of his discharge. In March 2003, the veteran filed another claim for service connection for diabetes mellitus. In his request to reopen his claim, he gave a list of manifestations of diabetes mellitus that he had observed both during service and after. He also provided a detailed list of providers who had treated him for diabetes mellitus since 1967, within one year of his discharge. He also submitted VA clinical notes indicating ongoing treatment for diabetes mellitus. The Board does not have jurisdiction to consider a claim which has been previously adjudicated "unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Under amended 38 C.F.R. § 3.156(a), new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the veteran's claim. 38 C.F.R. § 3.156(a). The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant's claim on any basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 20.302(a); Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the evidence associated with the claims file subsequent to the April 1999 rating decision, when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim, specifically, that the veteran reportedly had manifestations of diabetes mellitus within one year of discharge. 38 C.F.R. § 3.156. The newly submitted evidence raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that the evidence associated with the file since the RO's April 1999 rating decision is new and material, and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's atopic eczema and active candidiasis are rated under Diagnostic Code (DC) 7806 for dermatitis or eczema. Under DC 7806, a 10 percent evaluation for dermatitis or eczema requires evidence of exposure to 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 the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12- month period. The next higher rating of 30 percent requires evidence of exposure from 20 percent to 40 percent of the entire body or 20 percent to 40 percent of exposed areas affected; or the need for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. The highest rating allowable under DC 7806, 60 percent, requires evidence of exposure to more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. In a July 2003 VA examination report, the physician indicated that the veteran had skin disease located in the antecubital fossa and groin with hyperpigmentation and abnormal skin texture of less than 6 square inches. The affected region covered 4 percent of the exposed area. The physician also noted that "the skin condition coverage of the non-exposed area was 4 percent." There was no evidence of systemic disease or related nervous condition. A VA clinical note dated August 2004 noted "well-demarcated hyperpigmented erythematous scaly plaques in bilateral inguinal folds." Miconazole cream was prescribed. Since August 2004, no evidence has been submitted showing treatment for a skin disorder. The above findings do not demonstrate evidence of exposure from 20 percent to 40 percent of the entire body or 20 percent to 40 percent of exposed areas affected that would entitle the veteran to a disability evaluation in excess of 10 percent for atopic eczema and active candidiasis. There is also no indication that the veteran participated in a systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. According to the August 2004 clinical note, the veteran was prescribed miconazole, a topical treatment, for his skin disorder. Although the VA examiner did not directly address the affected percentage of the veteran's entire body, given his conclusion that only 4 percent of the veteran's groin area was affected, it is reasonable to presume that the area affected by the veteran's service-connected skin disorder constitutes less than 20 percent of the veteran's entire body. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Entitlement to a disability evaluation in excess of 10 percent for atopic eczema and active candidiasis has not been shown. The Board also finds that no other potentially applicable diagnostic code affords the veteran a higher evaluation for atopic eczema and active candidiasis of the groin. There is no objective evidence of scarring that is deep or causes limited motion; thus, entitlement to an increased rating under DC 7801 is not warranted. As there is no evidence that the veteran's disorder affects 20 to 40 percent of the body or exposed areas, or that he undergoes systemic therapy with corticosteroids or other immunosuppressive drugs for a total of six weeks or more, entitlement to an increased rating under DCs 7815 (bullous disorders), 7816 (psoriasis), 7821 (cutaneous manifestations of collagen vascular disease), or 7822 (papulosquamous disorders) has not been shown. There is also no evidence of exfoliative dermatitis; thus, an increased rating under DC 7817 is not for application. There has been no diagnosis of urticaria or a disease of keratinization which would entitle the veteran to an increased rating under DCs 7824 and 7825. Finally, there is no evidence of erythema multiforme or toxic epidermal necrosis which would warrant an increased rating under Diagnostic Code 7827. The Board must address referral to the Chief Benefits Director or the Director, Compensation and Pension Service, under 38 C.F.R.§ 3.321 (b)(1) only where circumstances are presented which the Director might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence of record does not demonstrate that the veteran's atopic eczema and active presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. Consequently, the Board concludes that a remand for consideration of the assignment of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher evaluation for atopic eczema and active candidiasis. Thus, the preponderance of the evidence is against the veteran's increased rating claim. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER New and material evidence to reopen a claim of service connection for diabetes mellitus has been received, and to this extent, the appeal is allowed. Entitlement to an evaluation in excess of 10 percent for atopic eczema and active candidiasis is denied. REMAND In correspondence dated March 2003, the veteran identified several treatment providers who have treated him for symptoms of diabetes mellitus type II since 1967. No effort has been made to obtain those records. Upon remand, a request for those treatment records should be made. The veteran has indicated that he served 3 weeks of temporary duty in the Republic of Vietnam. In August 2003, the National Personnel Records Center (NPRC) indicated that it was unable to verify the veteran's Vietnam service, but the personnel records were not provided. A request for the veteran's personnel file should be made. In May 2005, the veteran made statements indicating that the symptomatology associated with his service connected lumbar spine disorder has worsened since the last VA examination performed in July 2003. VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. See VAOPGCPREC 11-95 (1995). Thus, a new examination of the veteran's lumbar spine should be scheduled on remand. During the pendency of the appeal, the notice requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been interpreted to apply to all aspects of service connection claims, to include the initial disability rating and effective date elements of the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Corrective notice should be sent to the veteran to comply with Dingess. Also during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), which altered the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as they pertain to increased rating claims. On remand the RO should provide corrective notice in accordance with Vazquez-Flores. Accordingly, the case is REMANDED for the following action: 1. Notify the veteran of the information and evidence necessary to substantiate his claim for service connection, to include the rating criteria by which a disability granted service connection will be evaluated and how the effective date of that grant will be assigned. 2. Notify the veteran of the information and evidence necessary to substantiate his claim for an increased rating, to include the following: a. Evidence of the current worsening or severity of the disability and the effect that worsening has on the claimant's employment and daily life; b. General notice of the requirements of the applicable Diagnostic Code in the event that the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a notable worsening or increase in severity of the disability and the effect of that worsening on the claimant's employment and daily life (such as a specific measurement or test result); c. Notification that, in the event an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100%, 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; and d. 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. 3. After obtaining any necessary authorization from the veteran, request that the records of the veteran's treatment for diabetes mellitus or related symptomatology from Dr. Yancy in 1967, the VA Medical Center in Decatur, Georgia from the late 1960s to the 1970s, Grady Memorial Hospital in the early 1970s, and Physicians and Surgeons Hospital in the 1980s. 4. Request that the NPRC provide the veteran's service personnel records. Document all attempts to obtain those records in the claims folders and continue attempts to obtain them until it is reasonably certain that further attempts would be futile or it is reasonably certain that the records do not exist. 5. Schedule the veteran for a VA orthopedic examination to determine the current severity of his service-connected degenerative disease of the lumbar spine. The claims folder should be made available to the examiner for review and all necessary testing should be conducted. The examiner should specify any neurological involvement and its degree of impairment. All indicated studies, including range of motion studies in degrees, should be performed. If ankylosis is exhibited, the examiner should specify whether it is favorable or unfavorable. 6. After the above has been completed, readjudicate the issues on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issues on appeal continue to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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). These claims 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. 2007). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs