Citation Nr: 1302955 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 12-01 759 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to an increase in the 30 percent evaluation currently assigned for dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from December 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the RO which denied the benefits sought on appeal. A hearing before the undersigned was held at the RO in July 2012. FINDING OF FACT The Veteran's dermatitis is manifested by exfoliation, crusting, hypopigmentation of less than six square inches and abnormal texture of less than six square inches on the upper and lower extremities and buttock, without ulcerations, disfigurement, tissue loss, induration, hyperpigmentation, inflexibility or limitation of motion; systemic therapy is not required and the exposed area and total body surface is no greater than 25 percent. CONCLUSION OF LAW The criteria for an evaluation greater than 30 percent for dermatitis of the extremities and torso with biopsy scar are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in August 2009. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and testified at a hearing at the RO before the undersigned in July 2012. The Board finds that the VA examinations were thorough and adequate upon which to base a decision on the claim for increase, and there is no allegation or competent evidence indicating that there has been a material change in the severity of the Veteran's skin disorder since the most recent examination in July 2011. The examiners personally interviewed and examined the Veteran, elicited a medical history and provided the information necessary to evaluate his skin disorder under the applicable rating criteria. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Concerning the July 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In this case, while the undersigned VLJ did not discuss the bases of the prior determinations, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and to identify any pertinent evidence not currently associated with the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Factual Background & Analysis The Veteran contends that his service-connected dermatitis is more severe than reflect by the 30 percent evaluation currently assigned. At the hearing in July 2012, the Veteran testified that his dermatitis is a constant, cyclical problem that starts off as a red, puffy rash that raises up, turns brown and begins to ooze, then crusts over and dries up. The rash settles down for a bit and then the cycle begins again. He testified that the flare-ups are so bad at times, that he has missed work, and that it also affects his family life because he can't spend any time in the sun, and therefore, doesn't want to go on outdoor vacations. The Veteran's dermatitis is rated under Diagnostic Code (DC) 7806, which provides, in pertinent part, for a 30 percent evaluation when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or requires 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. A 60 percent evaluation is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs during the past 12-month period. In this case, the objective findings on VA examinations in August 2009 and July 2011, were essentially the same and showed exfoliation, crusting, hypo-pigmentation and abnormal texture of less than six square inches on the upper and lower extremities and buttock. There was no ulcerations, disfigurement, tissue loss, induration, hyperpigmentation, inflexibility or limitation of motion of any affected body part. Moreover, the Veteran has never required systemic therapy and the exposed areas and total body surface has never been shown to be greater than 25 percent. The Veteran's complaints and the clinical findings on VA examination in August 2009, as well as on the various VA outpatient records from 2003 through 2011, including records reviewed from Virtual VA, were not significantly different from those described on the 2011 VA examination report. In August 2009, the examiner opined that the skin lesion coverage relative to the whole body was 12 percent. On examination in 2011, the examiner estimated the skin lesion coverage of the exposed areas was 25 percent, and that relative to the whole body, was 0.5 percent. Similarly, the linear, superficial biopsy scar on the left mid-arm measured 1 by 0.2-cm, and was not painful or disfiguring. There was no skin breakdown, keloid formation, inflammation, edema or any underlying tissue damage, and no limitation of motion of any body part. The VA examiners commented that the effect of the Veteran's dermatitis on his occupation, included an inability to wear gloves, long sleeve shirts or long pants. The only private medical report of record, (Veteran testified that he goes to VA for his skin problems), showed treatment for a rash in August 2009. The clinical findings were not materially different from the other medical reports of record. The impression on the private report was tinea corpora's. In reaching its decision, the Board has taken into account the testimony and statements presented by the Veteran regarding the severity of the service-connected skin disorder. Nevertheless, however, the medical evidence does not show any symptoms or manifestations which would warrant the assignment of an evaluation in excess of 30 percent under DC 7806, based on surface area affected. That is, the most severe, estimated percentage of the affected area or entire body surface area was less than 25 percent. Further, the Veteran does not claim, nor do the medical reports of record show treatment with any type of systemic therapy such as therapeutic doses of corticosteroids or other immunosuppressive drugs at anytime during the pendency of this appeal, including the one year period prior to receipt of his claim for increase. Similarly, the medical reports of record do not show any specific residual problems associated with the biopsy scar. As such, a higher evaluation under DC 7806 is not warranted. As there is no other potentially applicable diagnostic code that would provide for a higher evaluation, the Board finds that the 30 percent evaluation currently assigned for the Veteran's skin disorder is entirely appropriate and accurately depicts the severity of the condition for the entirety of the rating period on appeal. Accordingly, an increased evaluation is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also, Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of a higher evaluation on an "extra-schedular" basis will be considered. 38 C.F.R. § 3.321(b)(1). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). For the reasons discussed above, the Board finds that the manifestations of the Veteran's dermatitis is consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disability is unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by his skin disorder, and provides for a higher evaluation for additional symptoms. In view of this, referral of this case for extraschedular consideration is not in order. Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. Here, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. Although the Veteran reported that he changed his occupation because of safety reasons (see VA Form 9), the evidence of record showed that he was a self-employed contractor and worked for two major corporations. (See March 2009 VA outpatient note). Moreover, the objective findings of record do not show or otherwise suggest that his dermatitis would preclude substantially gainful employment, nor does he contend otherwise. Based on the evidence of record, the Board finds that further consideration of a TDIU is not warranted. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the Veteran's claim. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increased evaluation for dermatitis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs