Citation Nr: 1301456 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-49 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a skin disability (atopic dermatitis). 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Air Force from October to January 1986. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for an evaluation in excess of 10 percent for the service-connected skin disability. In June 2011, a Board hearing was held at the RO before the undersigned who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The Board subsequently remanded the case for additional development in February 2012. The case has now been returned to the Board for appellate review. Finally, the appellant's claim of entitlement to service connection for a psychiatric disorder (to include posttraumatic stress disorder (PTSD)) was denied in a rating decision issued in April 2011. The appellant was notified of that denial in a letter sent by the RO to him that same month. The Veteran submitted a Notice of Disagreement (NOD) as to that service connection issue in May 2011. The claims file does not contain any Statement of the Case (SOC) issued in response to the Veteran's NOD received by the RO in May 2011. The Board must therefore remand the psychiatric disorder service connection claim for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). That issue is addressed in the REMAND portion of the decision below and it is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The objective medical evidence of record shows that throughout the appeal period, the appellant's skin disability covered at least 5 percent of the exposed areas affected, but less than 20 percent of the exposed areas affected and less than 20 percent of the entire body. 2. The appellant's skin disability has not been treated with systemic corticosteroids - only topical therapy. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for the appellant's skin disability (atopic dermatitis) have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.118, and Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary (1) 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [Diagnostic Codes]," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA provided notice relating to the increased rating claim in a letter dated in October 2009 (prior to the December 2009 denial). The letter also included the information required by the Dingess case. The increased rating claim was subsequently readjudicated in the January 2011 Statement of the Case (SOC) and in the September 2012 Supplemental Statement of the Case (SSOC). Mayfield, 444 F.3d at 1333. The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the December 2009 rating decision and the January 2011 SOC, along with the September 2012 SSOC, explained the bases for the RO's actions, and provided him with opportunities to submit more evidence. All relevant evidence identified by the appellant relative to his skin disability claim has been obtained and associated with the claims file. In addition, neither the appellant nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his increased rating claim, and to respond to VA notices. Furthermore, to whatever extent the decision of the Court in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision. In any case, such notice was supplied in the RO letter issued in October 2009. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores, 580 F.3d at 1270. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the appellant was afforded the opportunity to provide testimony to the Board in June 2011, and VA medical treatment records have been associated with the claims file. The RO arranged for VA medical examinations in February 2009, August 2010, and May 2012. Taken together, those examinations are adequate for adjudication purposes as, in each case, the examiner obtained a reported history from the Veteran and conducted a thorough physical examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The appellant was advised of the opinions and had the opportunity to respond. He has not identified any other pertinent evidence that remains outstanding. Thus, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed for an increased rating for skin disabilities, as well as the assistance VA would provide. A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the February 2012 Board remand, the appellant's outstanding VA treatment records were added to the evidence of record and the appellant was afforded a VA examination in May 2012. Therefore, substantial compliance has been achieved. Thus, VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on his claim at this time. Accordingly, the Board will address the merits of the appellant's claim. II. The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During his June 2011 Travel Board hearing, the appellant testified that the service-connected dermatitis covered both of his legs and his upper torso. He also said that the rash was on his back and his arms. The appellant further testified that the rash covered approximately 30 percent of his back. He said that he was prescribed pills for the itching caused by the rash in addition to the ointments he was prescribed. The appellant stated that he did not have any problems with lesions, open sores or skin flaking off. He said that no treatment worked and the condition kept getting worse. Disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A decision of the Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two disability 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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The appellant's skin disability (atopic dermatitis) is currently rated as 10 percent disabling under the provisions of 38 C.F.R. § 4118, Diagnostic Code 7806 (dermatitis or eczema). As of October 23, 2008, revised provisions for evaluating skin disabilities (scars) were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, because the appellant's claim was received after that date (September 10, 2009), these revisions do apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). However, in this case, the amended Diagnostic Codes are not for application as the appellant's disability does not include scars and his disability has been rated as eczema which is specifically addressed under Diagnostic Code 7806 which was not affected by the 2008 changes. Diagnostic Code 7806 provides that dermatitis or eczema that involves 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, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or, systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. The appellant underwent a VA medical examination in February 2009; the examiner reviewed the appellant's claims file and medical records and noted that he had a history of bilateral leg dermatitis and that he had been using a topical corticosteroid during the prior 12 months. The appellant did not report any systemic symptoms. He complained of pruritic patches on his legs, the right worse than the left. On physical examination, there were thickened and hyperpigmented pruritic plaques over the pretibial areas of each leg with the right being more severe than the left. The examiner rendered a diagnosis of atopic dermatitis and stated that the skin condition covered more than five percent of the appellant's exposed areas but less than 20 percent of the exposed areas. The examiner also stated that the skin disability covered less than 5 percent of the total body area. The appellant was afforded another VA medical examination in August 2010; the examiner reviewed the appellant's claims file and medical records. The appellant reported that his atopic dermatitis now covered his back and shoulders in addition to both of his legs. He stated that he was often awakened by pruritus. He also complained of itchy dry skin but denied systemic symptoms. On physical examination, thickened hyperpigmented plaques were observed by the examiner over each pretibial region (right worse than left) and on the upper back. The examiner determined that the skin disability covered less than five percent of exposed areas and that it covered more than five percent of the appellant's total body area but less than 20 percent of the total body area. The examiner rendered a diagnosis of atopic dermatitis. The appellant was most recently afforded a VA medical examination in May 2012; the examiner reviewed the claims file and noted that the appellant had a diagnosis of dermatitis. On physical examination, there was no disfiguration of the head, face or neck. There were no neoplasms. There were no systemic manifestations. The examiner stated that the appellant's treatment had consisted of topical medications and that he had not been given any systemic corticosteroids or immunosuppressive medications. The examiner stated that the appellant had not had any debilitating episodes during the prior 12 months. The examiner stated that the service-connected skin disability covered more than five percent of the appellant's exposed areas but less than 20 percent of the exposed areas; the same finding was made for the appellant's total body area. The examiner stated that there were no other pertinent findings and that the appellant's skin disability did not impact his ability to work. Review of the appellant's VA medical treatment records dated between August 2006 and February 2012 reveals that the appellant had not been hospitalized for treatment of his skin disability and that he had been prescribed topical ointments and creams. In October 2008, the appellant received diabetic foot care and normal skin integrity was observed. In March 2009, the appellant complained of an itching painful rash on his lower legs. He said that sweating caused discomfort. On physical examination, there was 2+ nodular thickening of the skin on the anterior shins with increased pigmentation. The assessment was eczema and creams and a wash were prescribed. In April 2009, the appellant was assessed with right-sided shin venous stasis. A May 2009 ambulatory care note indicates that the appellant did not have any suspicious lesions on his exposed skin surfaces; chronic venous status changes were found in each lower extremity. In October 2009, he complained of chronic dermatitis of the lower extremities; he was noted to continue with a rash and pruritus. He was prescribed creams, lotions, a wash and a pill for itching. On physical examination, he had chronic hyperpigmented changes of both lower extremities over the anterior tibial regions; the right leg was worse than the left leg. An October 2010 ambulatory care note indicates that the appellant's chronic venous stasis changes were a little worse, but there were no ulcerations. Primary care notes dated in October 2010, December 2010, and May 2011, indicated that the appellant did not have any suspicious lesions on his exposed skin surfaces. Thereafter, he was mostly seen for other medical complaints and his use of skin creams/lotions continued. Diagnostic Code 7806 provides that specific percentages of skin must be adversely affected by a veteran's claimed skin disability in order to qualify for a disability rating. In this case, the medical evidence of record indicates that the appellant's service-connected dermatitis disability covers at least 5 percent of exposed areas of the appellant's body but not as much as 20 percent has been affected by the skin disability. In terms of total body area, the appellant's service-connected dermatitis disability also covers at least 5 percent of his total body but not as much as 20 percent. In light of the foregoing, the criteria for a 30 percent rating have not been met on a schedular basis. The criteria for the next higher evaluation have not been met. The VA outpatient records and the VA medical examination reports do not indicate that the appellant's symptomatology meets the regulatory requirements for an evaluation in excess of 10 percent under the pertinent regulatory provisions. The evidence does not indicate that more than 19 percent of the exposed areas are affected or that more than 19 percent of the appellant's whole body is affected. In addition, the appellant has not received treatment with any intermittent systemic therapy like corticosteroids or other immunosuppressive drugs; he has only been prescribed topical medication. These clinical assessments are considered persuasive as to the appellant's degree of impairment due to his skin disability since they consider his overall industrial impairment due to his skin disability. Notwithstanding the above discussion, an increased evaluation for the skin disability could be granted if it were demonstrated that that particular disability presented 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. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints associated with employment, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). Referral for extraschedular rating is warranted where the level of disability is not contemplated by the rating schedule and the disability picture exhibits other related factors showing unusual or exceptional disability picture. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Court has held that, "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." Id. Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected skin disability. The competent medical evidence of record shows that his disability is primarily manifested on between five percent and less than 20 percent of his exposed area and the same amount for his total body area. In addition, he has only been prescribed topical corticosteroids and no systemic therapy or immunosuppressive drugs. The applicable diagnostic codes used to rate the disability provide for ratings based on the amount of body surface area affected and the type of therapy required; these factors have been taken into account and are considered in applying the relevant criteria in the rating schedule. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. The Board acknowledges that the appellant, in advancing this appeal, believes that his skin disability has been more severe than the assigned disability rating reflects. He maintains that he experiences problems with his daily activities that are due to that disability. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the appellant's contentions. In this case, however, the competent medical evidence offering the specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the skin disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of this disability. The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to the skin disability since they consider the overall industrial impairment due to this service-connected condition. The preponderance of the most probative evidence does not support assignment of any higher rating for the skin disability. The findings needed for the next higher evaluation in excess of 10 percent for the skin disability are not currently demonstrated. Since the preponderance of the evidence is against an allowance of an evaluation in excess of 10 percent for the skin disability under the schedular criteria, the benefit of the doubt doctrine is inapplicable. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability rating due to individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, an initial rating is not at issue and evidence of unemployability due to the skin disability has not been presented. Furthermore, the evidence of record demonstrates that the appellant has been employed during the appeal period. Finally, in light of the holding in the Hart case, the Board has considered whether the appellant is entitled to a "staged" rating for his skin disability. As reflected in the decision above, the Board has not found variation in his symptomatology or clinical findings that would warrant the assignment of any staged rating for the skin disability. Based upon the record, the Board finds that at no time during the claim/appellate period has the skin disability on appeal been more disabling than as currently rated. For the above reasons, the Board finds that the preponderance of the evidence is against the appellant's claim for an increased evaluation for his service-connected skin disability. Because the preponderance of the evidence is against this increased rating claim, the benefit-of-the-doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER A disability evaluation in excess of 10 percent for the skin disability (atopic dermatitis) is denied. REMAND Turning to the appellant's claim for service connection for a psychiatric disorder (to include PTSD), the appellant submitted a timely NOD, in May 2011, in which he expressed disagreement with the RO's April 2011 denial of his claim for service connection for a psychiatric disorder, including an anxiety disorder, a depressive disorder and PTSD. Because the RO did not subsequently issue an SOC addressing that issue, the Board must remand that issue to the RO for issuance of an SOC in relation to the April 2011 rating decision. Manlincon v. West, 12 Vet. App. 238, 240 (1999). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed. 2. Re-examine the appellant's claim for service connection for a psychiatric disorder (including PTSD). After accomplishing any required additional development, prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought, or by the withdrawal of the NOD. 3. If, and only if, the appellant files a timely Substantive Appeal as to the psychiatric disorder service connection claim, return that issue to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs