Citation Nr: 1301756 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-43 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to February 15, 2011, for nummular eczema. 2. Entitlement to a disability rating in excess of 30 percent effective February 15, 2011, for nummular eczema. ATTORNEY FOR THE BOARD A-L Evans INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Additional evidence was received in February 2011. This was after the substantive appeal had been filed in October 2010. The RO issued a supplemental statement of the case in March 2011, following a March 2011 rating decision, which granted an increased rating to 30 percent disabling for nummular eczema effective February 15, 2011. As the increase does not represent the maximum rating available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). FINDINGS OF FACT 1. Prior to February 15, 2011, the Veteran's nummular eczema affected at least 5 percent, but less than 20 percent of the entire body, and it had not required 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 months. 2. As of February 15, 2011, the Veteran's nummular eczema has affected 25 percent of the entire body, and it has not required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 10 percent prior to February 15, 2011, for nummular eczema have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§4.1-4.14 (2012), 4.118, Diagnostic Code 7806 (2008 & 2012). 2. The criteria for establishing entitlement to a disability rating in excess of 30 percent as of February 15, 2011, for nummular eczema have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§4.1-4.14 (2012), 4.118, Diagnostic Code 7806 (2008 & 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The VCAA notice, in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). An October 2008 letter notified the Veteran of the information and evidence needed to substantiate and complete the claim on appeal. This letter was provided to the Veteran before the initial adjudication of his claim in March 2009. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. Also, VA obtained records from the Veteran's VA medical examinations in November 2008 and February 2011 for a skin disorder, as well as a June 2011 psychiatry examination. [The psychiatric examination was conducted in connection with the Veteran's claim for service connection of a mood disorder secondary to the service connected skin disability, which was considered by the RO in a July 2011 rating decision. The Veteran received notice of and a copy of the rating decision in August 2011. The Board agrees with the RO's apparent decision that such evidence did not require the issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012).] The Board finds that the skin examinations are adequate for evaluation purposes because the examiners had knowledge of the relevant facts, considered the contentions of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, VA received the Veteran's VA outpatient treatment records dated October 2004 through April 2010. Private medical records regarding the Veteran's psychological examinations, along with copies of the Veteran's Social Security Administration (SSA) records were obtained and associated with the claims file. The Board is cognizant that the record shows that a letter was mailed to the Durham Regional Hospital in November 2008 requesting treatment records from August 28, 2008 to the present to which no reply was received. It appears this may have been in error as the Veteran has indicated that he receives his treatment through the Durham VAMC. See September 2008 statement. Indeed, a VA treatment record dated August 28, 2008 shows the Veteran was seen in the emergency department for an acute flare of eczema. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, 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), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the instant case, the Veteran seeks an increased rating for his service-connected skin disorder. As noted, the March 2011 rating decision granted a staged rating for the disability. Id. The skin disability has been rated under Diagnostic Code 7806, for dermatitis or eczema. 38 C.F.R. § 4.118 (2012). During the course of this appeal, the schedular criteria for evaluating skin disorders were amended effective October 23, 2008. The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54708 (September 23, 2008). While the Veteran filed his claim in September 2008, the September 2010 statement of the case shows a reference to the amended regulation. The criteria under Diagnostic Code 7806 were not affected by the revisions. Under the rating criteria, with more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, a 60 percent rating is assigned. A 30 percent rating is assigned with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 10 percent rating is warranted with 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 is required for a total duration of less than six weeks during the past 12-month period. Id. at Diagnostic Code 7806. Analysis In September 2008, the Veteran filed a claim for an increased rating for his skin disorder. At that time, he was service-connected at a 10 percent disability rating, but claimed that his condition had worsened. The Veteran stated that he was constantly scratching his skin and that the back of his knees, small of his back, left ear, chest and groin were problem areas. The Veteran underwent a VA examination in November 2008. The examiner noted that the Veteran was using a cream every day to control his dry skin. During the flares, the Veteran used a lotion, a hydrocortisone cream for his face and a triamcinolone ointment for his body. In addition, the Veteran used a flucinoline oil for his scalp and ears and a fluocinocide ointment for other areas. The flares occurred four to five times over the past year. On physical evaluation, the examiner stated that the Veteran's anterior lower legs showed signs of lichenified hyperpigmented excoriated plaques and crusted papules. The examiner indicated that there was no exposed area affected by the skin disorder and that less than 5 percent of the Veteran's total body area was affected. Also noted was that the Veteran was not treating the skin disorder with a corticosteroid or other immunosuppressive drug. VA treatment records were obtained from October 2004 to April 2010. The physician opined at the time of the treatments in October 2008 and April 2009 that the Veteran's skin looked great. He noted that the Veteran did have eczematous dermatitis and that the Veteran should continue using his creams and ointments during flares. In the October 2009 treatment record, the examiner noted that the Veteran's eczematous dermatitis was flaring and the examination revealed erythema and scaling with hyperpigmentation on the scalp, legs, ankles and back. He diagnosed a total of 15 percent of the body surface area affected. In the April 2010 record, the Veteran's diagnosis was that the eczematous dermatitis was well controlled. The Veteran was afforded an additional VA examination in February 2011. Here, the physician noted a review of the Veteran's "medical records." The Veteran reported an intense itching and burning sensation associated with his eczema. He stated that it sometimes interfered with his ability to sleep and that the situation was embarrassing. It was noted that to treat the skin disorder, the Veteran was using a topical cream that contained cortisteroid. In addition, he was using a systemic antihistamine. Upon the physical evaluation, the physician noted erythematous and scaling plaques on the Veteran's scalp, neck, upper back, shoulders, abdomen, thighs, upper arms, forearms and lower legs. He noted no scarring, but a skin disorder covering 5 percent of the Veteran's total exposed area, which is the face and neck, and a 25 percent skin disorder of the Veteran's total body surface. In this case, the Board must first consider entitlement to a disability rating in excess of 10 percent prior to February 15, 2011, for nummular eczema. In the Veteran's 2008 VA examination, the examiner opined that no exposed area was affected by the skin disorder and that less than 5 percent of his total body area was affected. The report noted that the Veteran was not treating his skin disorder with a corticosteroid or an immunosuppressive drug. In October 2009, the Veteran's VA dermatology record did indicate that at that time he exhibited an escalation in his skin disorder. However, it was noted that the flare only covered approximately 15 percent of his total body surface. The percentage of total body surface the flare covered, is less than the 20 to 40 percent of the entire body required to increase the rating disability to the next rating for the skin disorder. See Diagnostic Code 7806. The physician did note that the Veteran was using a hydrocortisone cream, which is a topical steroid cream and not a systemic corticosteroid. In a March 2010 written statement, the Veteran stated that he was on systemic therapy for his skin condition because he was using a corticosteroid. While the Veteran asserts systemic therapy, the evidence of record actually demonstrates the corticosteroid as a topical therapy. The topical steroid cream was only used on the affected areas, which is not considered systemic therapy. "Systemic" therapy is defined as pertaining to or affecting the body as a whole. See Dorland's Illustrated Medical Dictionary 1865 (32nd ed. 2012); Perkins v. Peake, No. 05-3731, 2008 WL 2446312, at *1 n.1. (Vet. App. June 11, 2008) (unpublished single-judge disposition) (noting definition). A review of the entire record shows that there is no additional evidence that demonstrates that the skin disorder prior to February 15, 2011 meets the criteria to increase the rating disability under Diagnostic Code 7806. Therefore, the Board finds that the preponderance of the evidence demonstrates that an increased rating for this period is not warranted. The Board must next consider entitlement to a disability rating in excess of 30 percent effective February 15, 2011, for nummular eczema. In an October 2010 written statement, the Veteran asserted that his skin condition covered 40 percent of his body, including his scalp, legs, ankles, back, chest and arms. Additionally, the February 2011 VA examination report shows that the Veteran indicated that he felt the skin disorder interfered with everything he did because he was always scratching his body. However, the examiner opined that the skin disorder affected only 25 percent of the total body surface and 5 percent of the exposed areas and indicated that the Veteran was using an antihistamine, along with topical lotions which included a corticosteroid to treat the affected areas. Thus, he does not meet the criteria for a 60 percent rating. Indeed, the Veteran was afforded a VA medical examination for a mental disorder in June 2011. The records indicate that the Veteran stated that the itching related to his skin disorder "comes and goes" and the use of topical creams is effective. Also, the examiner noted that while the Veteran was being examined, there was no evidence of skin irritation and that the Veteran did not excessively scratch his skin. Since the February 2011 VA examination, the Veteran has not asserted an increase in the severity of his skin disorder and no evidence has been submitted to support his claim. Based on the review of the evidence of record, it has not been shown that the skin disorder exceeds the 30 percent disability rating under Diagnostic Code 7806. As such, the Board finds that the preponderance of the evidence demonstrates that an increased rating for this period is not warranted. Of record, the Board notes that no scarring has been noted on VA examinations nor has the Veteran contended that scarring is present. Moreover, in the February 2011 examination, the VA examiner specifically noted that there was no scarring or disfigurement. Therefore, there are no residual symptoms of scarring associated with this service-connected skin disability, rendering a review of disability ratings under Diagnostic Codes 7801-7805 inapplicable. See 38 C.F.R. § 4.118. In so finding, the Board notes that the Veteran is competent to report on symptoms and credible in his belief that his symptoms are of such severity as to warrant a higher rating. This competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the skin impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with his service-connected skin disorder include intermittent rashes with itching and burning, requiring topical steroid use, which "interfere[d] with everything [he did]" and his sleep. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Having to itch at which time it so happens to coincide during a period of activity or while sleeping is not an exceptional or unusual feature of the skin disorder. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for an extraschedular rating is not warranted. The Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his skin condition renders him unemployable and the evidence does not otherwise suggest that this is the case. SSA records indicate that the Veteran stopped working due to disabilities incurred from a post-service motor vehicle accident. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issues before the Board. The Board has duly considered the staged disability ratings, pursuant to Francisco, Hart, supra. It has found that the preponderance of the evidence is against the award of a disability rating in excess of 10 percent prior to February 15, 2011, and in excess of 30 percent thereafter. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a disability rating in excess of 10 percent prior to February 15, 2011, for nummular eczema is denied. Entitlement to a disability rating in excess of 30 percent effective February 15, 2011, for nummular eczema is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs