Citation Nr: 1033744 Decision Date: 09/09/10 Archive Date: 09/21/10 DOCKET NO. 08-12 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an increased disability rating for a skin disorder of the feet, rated as 60 percent disabling from March 2, 2006 through July 1, 2008, and as 30 percent disabling following that date to include whether the reduction was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to October 1953, and from March 1957 to March 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board notes that the appeal stems from a July 2006 rating decision, which granted a 60 percent rating for the Veteran's epidermolysis bullosa of the feet. The Veteran submitted a Notice of Disagreement with this decision, contending that the disability warranted a higher rating. During the course of his appeal, the RO determined that there was a clear and unmistakeable error in the July 2006 rating decision awarding a 60 percent rating, in that there was no evidence of constant or near-constant systemic therapy such as corticosteroids or other immuno-supressive drugs. The rating was proposed to be decreased in October 2007, and was decreased to 30 percent in an April 2008 rating decision. The Board has adjusted its consideration of the Veteran's claim accordingly. In connection with his appeal, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge at the RO in July 2010. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran submitted additional evidence and waived his right to have the evidence initially considered by the RO. In addition, the Board notes that a previous copy newly submitted evidence was already of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's skin disability of the feet has been manifested by pain and blistering and dry, scaly skin treated by topical creams; the affected area is not more than 40 percent of the entire body more than 40 percent of the exposed areas, and near- constant systemic therapy with steroids or immunosuppressive drugs has not been required. The rating action that awarded the 60 percent rating was manifestly incorrect. CONCLUSION OF LAW The criteria for an increased disability rating for a skin disorder of the feet, rated as 60 percent disabling from March 2, 2006 through July 1, 2008, and as 30 percent disabling following that date, have not been met. The grant of the 60 percent rating was clear and unmistakable error and the reduction was proper. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Code 7815 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letters mailed in March 2006. These letter provided appropriate notice to the Veteran regarding what information and evidence was needed to substantiate his claim for an increased rating to include how effective dates are established. They also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the Veteran's employment, and statements from persons concerning their observations of how the disability has affected the Veteran. They also informed the Veteran of the assistance that VA would provide to obtain evidence on his behalf, as well as what information and evidence must be submitted by the Veteran. The Board also notes that the Veteran has been afforded appropriate VA examinations and service treatment records and pertinent VA medical records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). The Veteran's skin disability of the feet is currently rated under Diagnostic Code 7815 for bullus disorders. Under this code, a 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas are affects, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past twelve month period. 38 C.F.R. § 4.118, Diagnostic Code 7815. 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. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected skin disorder of the feet. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran was originally granted service connection for epidermolysis bullosa of both feet in a September 1963 rating decision. The disability was assigned a 10 percent rating, effective May 4, 1963. The RO increased the disability rating to 30 percent in a March 1977 rating decision, effective December 19, 1974. The Veteran filed the instant claim for an increased rating in March 2006. He appealed a July 2006 rating decision granting a 60 percent disability rating. As noted above, during the course of his appeal, the RO determined that there was a clear and unmistakeable error in the July 2006 rating decision awarding a 60 percent rating. The rating was proposed to be decreased in October 2007, and was decreased to 30 percent in an April 2008 rating decision. This was done properly with appropriate notice and waiting periods. The grant of the 60 percent rating was clear and unmistakable error and as such, the reduction was proper and was properly carried out. In response to his claim for an increased rating, the Veteran was afforded a VA examination in March 2006. During the examination, the Veteran reported that he medicated his skin disability of the feet with hydrocortisone, lanacane, lamasil cream, miconasole nitrate, and clotrimazole. He reported pain upon standing for approximately one half-hour and walking one mile. He also indicated that he experienced blistering of his feet after walking for three to four days in a row, taking a week to heal, and that his conditioned worsened during the summer months. A physical examination revealed dry scaly skin on the bottom of both feet. There were also dystrophic toenails on both large toes. There were no neurological deficits, and musculoskeletal and vascular exams did not reveal any abnormalities and were within normal limits. A diagnosis of epidermolysis bullosa of both feet with blistering after walking three to four days was noted. The examiner found that this disability would impact the Veteran's ability to do chores, get around, and exercise for his health. During the Veteran's July 2010 Board hearing, he testified that his bilateral foot disability has greatly impacted his ability to work and exercise. He described symptoms of blisters, sores, and crusting on his feet. The Veteran also reported that he treated his skin disability with topical creams such as lanacane and lamasil and used a walker and a crutch. VA outpatient treatment records also track the Veteran's symptoms with respect to his skin disability of the feet. In February 2006, dry scaly skin on the bottom of both feet and discolored and dystrophic toenails were noted. An impression of onychomycosis with toenail hypertrophy and tinea pedis was noted. The plan was to debride the Veteran's toenails and oral lanasil was prescribed. In October 2007, slight erythema with flakey patches was noted. In November 2007, the treating physician recommended that the Veteran wear comfortable, well-fitting shoes and continuously care for his blisters. It was also indicated that the Veteran was to be instructed on proper diabetic foot care and footwear. Pain and discomfort of the feet were noted in September and October 2008. The treating physician at that time determined that the pain in the Veteran's feet was most likely from a combination of diabetes peripheral neuropathy and frozen feet. With respect to the period from March 2, 2006 through July 1, 2008, the Board notes that the Veteran was receiving the maximum disability rating allowable under Diagnostic Code 7815. The Board has found no other basis to assign a higher rating. As for the period beginning July 1, 2008, the Board has determined that the Veteran is not entitled to a disability rating in excess of 30 percent for his skin disorder of the feet. The record reflects that the Veteran's skin disability has been treated with a variety of topical creams; however there is no indication that the disability has necessitated constant or near- constant systemic therapy with steroids or immunosuppressive drugs. Moreover, the skin condition is limited to the Veteran's feet; thus, it cannot be said that more than 40 percent of the entire body or more than 40 percent of exposed areas are affected by the disability. The Board has considered the Veteran's statements with respect to the pain and discomfort he experiences as a result of his skin disability of the feet, as well as VA outpatient treatment records noting that the Veteran has foot pain in part due to his skin disability of the feet. The record reflects that the Veteran has been assigned 60 and 30 percent ratings at various points during the course of his appeal, which reflect the functional impairment, including pain and discomfort experienced by the Veteran. As explained above, the objective evidence shows that he does not have sufficient functional impairment to warrant higher ratings. The Board also points out that the Veteran's foot pain and foot care has also been attributed to another condition-diabetic peripheral neuropathy-for which the Veteran is not service connected. Consideration has been given to assigning a staged rating; however, at no time during the periods in question has the disability warranted more than the 60 and 30 percent ratings for the periods discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for the disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of those contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to an increased disability rating for a skin disorder of the feet, rated as 60 percent disabling from March 2, 2006 through July 1, 2008, and as 30 percent disabling following that date, to include whether the reduction was proper, is denied. The reduction was proper. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs