Citation Nr: 0811505 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-36 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an evaluation in excess of 10 percent for folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran had active service from July 1990 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) which denied an evaluation in excess of 10 percent for the veteran's skin disorder. In a substantive appeal received in October 2005, the veteran had requested a travel Board hearing. However, in correspondence received in December 2005, the veteran indicated that he wanted hearing at the RO before VBA personnel instead. The veteran presented testimony at a hearing held at the RO before VBA personnel in July 2006. A transcript of that hearing is on file. While review of the veteran's increased rating claim was pending appellate consideration by the Board, the veteran filed several additional claims, including an application to reopen a service connection claim for a low back disorder (November 2005); an increased rating claim for Crohn's disease (March 2006) and an increased rating claim for a psychiatric disorder (July 2006). In a June 2006 rating decision the previous denial of service connection for a low back disorder was confirmed and continued and an increased rating of 60 percent was granted for Crohn's disease. That decision was not appealed. In an October 2006 rating action, an increased rating of 30 percent was granted for adjustment disorder. That decision was also not appealed. Thus, the only issue before the Board for appellate consideration is the increased rating claim for a skin condition. In a statement provided by the veteran in September 2006, he indicated that he wanted his claim to be considered by more than one member of the Board; in essence he requested consideration of his claim by a panel of Board members. However, panel decisions are only required under VA regulations in cases in which Board hearings are held on the same claim before different Veterans Law Judges (VLJs). In that circumstance, VA regulations require that each of the Veterans Law Judges who presided at a hearing must participate in the decision on the claim, and the appeal must be decided by a Board panel. 38 C.F.R. § 20.707 (2007). The veteran never requested a Board hearing in this case, and there is no basis for consideration of this clam by a panel of Board members/VLJs. FINDINGS OF FACT The veteran's service-connected folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum involves less than 20 percent of his entire body and exposed areas, and does not require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during a twelve-month period. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7806 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Following receipt of the veteran's November 2003 claim for increase, the RO issued a duty to assist letter in March 2004 which advised the veteran of VA's duty to assist him to obtain evidence to support the claim for an increased evaluation for a skin disorder. The letter advised the veteran that he should identify dates and locations of treatment and of medical evidence, lay statements, employments records, etc. which support his claim. That VCAA letter discussed the duties and responsibilities of VA and the veteran as pertains to obtaining and providing evidence in support of the claim, but did not make specific reference to the relevant diagnostic code and criteria required for an increased evaluation for the skin disorder. However, as part of the July 2004 rating decision denying an evaluation in excess of 10 percent for his skin disorder, the veteran was notified of the criteria for an evaluation in excess of 10 percent for the skin disorder. Following his disagreement with the assigned evaluation, the veteran was provided with an August 2005 statement of the case (SOC) which set forth, in pertinent part, the complete text of 38 C.F.R. § 4.118, Diagnostic Code 7806, providing the criteria for schedular evaluations for dermatitis or eczema. Accordingly, the Board believes that the type of notice discussed in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), has been provided for the veteran. Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). Moreover, the veteran was provided with a supplemental statement of the case (SSOC) in September 2006. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Accordingly, the duty to notify has been fully met in this case and the veteran was made aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 letter provided such notice. The Board also concludes VA's duty to assist has been satisfied. The veteran's pertinent post-service VA medical records are in the file and he has undergone several evaluations from 2004 forward. In addition, he provided testimony at the RO in July 2006 pursuant to his request for a VBA hearing. There is no allegation from the claimant that he has any additional evidence in his possession, but not associated with the record, that is needed for a full and fair adjudication of the claim or that he is aware of any other evidence which might be relevant. Both the duty to assist the veteran and the duty to notify the veteran have been met. Accordingly, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claim and the veteran has not indicated that he has any additional evidence or information to provide in support of his claim. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background Service connection for a skin disorder of the legs and groin, described as folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum (hereinafter described as a skin disorder) was granted in a December 1994 rating action, and a 10 percent evaluation was assigned, effective from September 1994. In November 2003, the veteran filed an increased rating claim for the skin disorder. VA records dated in 2003 show that the veteran was being treated for eczema in the groin and scrotal area. A dermatology note dated in October 2003 shows that the veteran was seen with a 10 year history of scrotal itching and pain as well as perianal itching and pain. Skin examination revealed significant scrotal lichenification and erythema. Scrotodynia was diagnosed and the doctor suspected that the itching and pain was secondary to pudendal nerve entrapment from a previous back injury, now with significant secondary changes from scratching and topical applications. A VA examination of the skin was conducted in May 2004, and it was noted that the claims folder was reviewed. The veteran complained of burning, itching and flaking in the scrotal area and reported that he had been told that he had pudendal nerve entrapment. He indicated that he had constant symptomatology of the skin condition and noted that he had occasionally been on immunosuppressive drugs due to Crohn's disease. Physical examination revealed folliculitis on the back of the thighs, without other evidence of folliculitis. The scrotal area had a 3 cm x 3 cm area on each side of chronic lichenification. There was no evidence of any eczema. The examiner stated that no exposed areas were involved and observed that less than 5% of the total body area was involved. Diagnoses of: eczema, no evidence of; minor folliculitis; chronic lichenification of the scrotum with no current treatment; and coccydynia with pruritis, caused by a previous back injury with a pudendal nerve entrapment - not related to or caused by military service, were made. In a July 2004 rating decision, the RO denied an evaluation in excess of 10 percent for the veteran's skin disorder. VA records show that the veteran continued to be treated for skin symptomatology during 2004. A record dated in April 2004 shows that an assessment of scrotodynia secondary to pudendal nerve entrapment was made. A VA examination of the spine was conducted in June 2005, at which time the examiner determined that there was no pudendal nerve entrapment. On VA skin examination in June 2005, the veteran was shown to have pink, lichenified, thickened and hyperlinear skin of the entire scrotum, perineum, and the inferior portion of the perirectal skin. It was noted that there was no involvement of the gluteal crease, buttocks or medial thighs. The examiner observed that there were a few (less than 10) periofollicular 1 mm pink papules on the left medial thigh and one on the left lower leg. There was no evidence of fungal infection. The examiner estimated that the skin condition affected a total of about 10 percent of the body veteran's skin surface. Lichen simplex chronicus, of unknown primary cause was diagnosed. The examiner was unable to make a conclusion as to whether or not this was the result of pudendal nerve entrapment, but indicated that it was not caused by or the result of immunosuppressive therapy for Crohn's disease. VA records dated in 2005 show that the veteran continued to be followed for skin symtomatology. The veteran was seen for a dermatology consultation in October 2005. He complained of pruritis and burning pain in the scrotal, perineum and perianal areas. Skin examination revealed erythema and thickening of the scrotum, perineum and perianal skin. Also exhibited were linear tracks of erythema with some crusting consistent with excoriation. There were small areas of lichenification and several raw appearing areas on the scrotum. Symptomatology was noted to have affected about 80% of the skin surface area of the groin and inguinal area. An assessment of scrotodynia was made. During the most recent VA examination, conducted in February 2006, it was noted that the claims file and available medical records were thoroughly reviewed. The veteran's symptoms included daily and constant itching. On physical examination, the scrotum, perineum and inferior portion of the perirectal area were pink, lichenified and thickened. There was no involvement of the buttock or medial thigh regions. Five small papules on the right medial thigh and left posterior thigh were noted. There was no evidence of fungal infection. Lichen simplex chronicus of the scrotal region and folliculitis of the thighs in totality was diagnosed and the examiner estimated that these disorders affected about 10% of the total body area and 0% of the exposed body area. In addition, the VA examiner opined that it was not at least as likely as not that the scrotal symptoms/complaints were caused or aggravated by the veteran's low back injury; it was more likely that these symptoms were just a continuation of lichen simplex chronicus. It was also explained that the symptoms were in the pudendal nerve area, but that it was not at least as likely as not that there was actual pudendal nerve entrapment, as this would normally cause some decrease in urethral contraction and urinary or fecal incontinence, but the veteran had none of these manifestations. VA records showed that the veteran was evaluated in June 2006, at which time it was noted that the veteran had a chronic perineal/scrotal rash with pruritis, and post scratching bleeding. Physical examination of the groin area revealed several erythematous plaques on the scrotum, extending into the perianal region with lichenification and scaling. The doctor stated that these manifestations looked like intertriginous psoriasis. The veteran provided testimony at a Regional Office hearing held in July 2006. The veteran testified that in a VA medical record dated on October 28, 2005, a VA doctor had stated that the veteran's skin condition had affected 80% of his body. Efforts to obtain the aforementioned VA dermatology record dated on October 28, 2005, were made but were unsuccessful. A formal finding of unavailability of that medical record was made in September 2006. However, it appears that the veteran is actually referencing an October 18, 2006, dermatology record which is on file and discussed herein. Legal Analysis The veteran contends that the severity of his service- connected skin disorder warrants an evaluation in excess of 10 percent. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The veteran's service-connected skin disorder is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code7806 (2007). The condition is rated by analogy to the dermatitis or eczema under Diagnostic Code 7806. Rating by analogy is appropriate where an unlisted condition is encountered, and a closely related condition which approximates the anatomical localization, symptomatology and functional impairment is available. 38 C.F.R. § 4.20. Under the criteria of Diagnostic Code 7806, a 10 percent rating is assigned where at least 5 percent but not more than 20 percent of the entire body is affected, or at least 5 percent, but less than 20 percent of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the twelve-month period. A 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during a twelve-month period. Diagnostic Code 7806 also provides that a disability may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. The Board observes that the exposed areas as contemplated under VA regulations found at 38 C.F.R. § 4.118 specifically include the head, face and neck. Significantly, the medical evidence does not show that 20 to 40 percent of the veteran's entire body or 20 to 40 percent of the exposed areas are affected. Evidence dated since the veteran filed his claim for increase in 2003 until the present time reflects that the veteran's skin condition affects the scrotal, perianal, perineum areas and sometimes appears on the top of the thighs, none of which are considered exposed areas under VA regulations. VA examination reports dated in May 2004, June 2005 and February 2006 all indicated that the veteran's skin symptomatology affected not more than 10% of his total body area and no exposed area. The evidence of record is otherwise negative for any indication that the skin symptomatology affects 20% or more of the veteran's body or exposed areas. The veteran maintains and testified to the effect that a VA medical record dated in October 2005 documented that his skin condition affected 80% of his body. However, that evidence is on file and in fact stated that 80% of the skin surface in groin and inguinal areas was affected by symptomatology. Accordingly, that evidence does not represent a clinical finding that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas was/were affected by symptomatology related to the veteran's skin condition(s). Moreover, the veteran's interpretation of that evidence is completely inconsistent with the clinical findings made upon VA examinations conducted in 2004, 2005 and 2006. In addition, the has been no evidence presented which shows that the veteran requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during a twelve-month period. As such, the veteran has not been shown to have met the criteria for a higher initial 30 percent rating under Diagnostic Code 7806. While the Board has considered whether a higher initial evaluation would be in order under other relevant diagnostic codes, the Board finds that the criteria for a rating in excess of 10 percent are simply not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 (2007). In this regard, the Board notes that a 10 percent disability rating represents the maximum schedular evaluation under Diagnostic Codes 7802, 7803, and 7804. Diagnostic Code 7800 is used for the evaluation of scars of the head, face, and neck; as the veteran's skin disorder shows no involvement in those areas, consideration of that code is not warranted. Moreover, Diagnostic Code 7801 governs the rating of scars, other than head, face, or neck, that are deep or that cause limited motion. However, the medical evidence does not show the veteran to have scars that are deep or causes limited motion. Since Diagnostic Code 7805 provides that other scars should be evaluated on limitation on of motion of the affected part, this code is also not for application. Therefore, the Board finds that the veteran is not entitled to a higher evaluation under Diagnostic Codes 7800, 7801, 7802, 7803, 7804and 7805. For all the foregoing reasons, the Board finds that there is no basis for an increased evaluation and that the claim for a rating in excess of 10 percent for folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum must be denied. Because the preponderance of the evidence is against the claim, the Board does not apply the benefit-of- reasonable doubt rule. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). ORDER A rating in excess of 10 percent for folliculitis of the thighs and buttocks with lichen simplex chronicus of the scrotum is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs