Citation Nr: 1305213 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 09-13 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 10 percent for eczematoid dermatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, for the Detroit, Michigan RO. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. A June 2010 letter informed the Veteran that his hearing was scheduled in July 2010. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In reviewing the Veteran's appeal for an increased rating, the Board has not overlooked the recent holding of the States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). In this regard, the Veteran has asserted that he is unemployable due to his service-connected eczematoid dermatitis. However, the Board notes that the RO subsequently developed a TDIU claim and denied entitlement to a TDIU in an October 2009 decision. The Veteran has not filed a Notice of Disagreement with the October 2009 decision. As such, the Board finds that Rice is not applicable to the current appeal because entitlement to a TDIU has already been considered and denied in an unappealed decision. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. FINDING OF FACT Throughout the period of appeal, the Veteran's service-connected eczematoid dermatitis is manifested by complaints of itching and a rash without the requirement of at least six weeks or more of systemic therapy such as corticosteroids or other immunosuppressive drugs, and the medical evidence of record does not reflect that the Veteran's eczematoid dermatitis covers at least 20 percent of the entire body or at least than 20 percent of exposed areas affected. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected eczematoid dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of the appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in November 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. That letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. This letter also described how disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with an examination for his eczematoid dermatitis most recently in December 2008. An addendum was provided later in December 2008. The examiner reviewed the claims files, conducted the appropriate diagnostic tests and studies, and considered the Veteran's assertions. The Board finds this examination report to be thorough and consistent with contemporaneous medical records. Thus, the Board concludes that the examination in this case is adequate upon which to base a decision with regard to this claim. Furthermore, the Board observes that the RO did attempt to schedule the Veteran for a more recent VA examination in July 2009 to once again evaluate the severity of his disability, and to clarify whether such disability rendered him unable to work as the Veteran had recently submitted a formal claim for TDIU. However, the Veteran failed to report for that examination. Under such circumstances, 38 C.F.R. § 3.655(b) (2012) provides that, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase without good cause, the claim shall be denied. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street," and a veteran has an obligation to assist in the development of his claim). However, as discussed above, the record reflects that the Veteran did report for a VA examination previously during this appeal. Therefore, the Board does not believe that the instant case is of the type contemplated by 38 C.F.R. § 3.655, and the Board will evaluate the claim on the evidence of record. The Board does emphasize, however, that in light of the Veteran's failure to appear for an additional VA examination, the Board concludes that the RO did attempt to develop this case to the extent possible under the circumstances. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Service connection for eczematoid dermatitis was originally granted in an August 1967 rating decision with a 30 percent disability rating under Diagnostic Code 7806. In a subsequent August 1972 rating, the disability rating was reduced to 10 percent. The present claim for increase was filed in May 2007. The Board acknowledges that 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 were amended, effective from October 23, 2008. However, as the Veteran is not rated under these diagnostic codes, the Board finds that this amendment will essentially have no impact on his disability rating for eczematoid dermatitis, as will be discussed in further detail below. Under Diagnostic Code 7806, a 0 percent rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned for 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. A 30 percent evaluation will be assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation will be assigned for dermatitis that covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or with constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7806 remained under the same under the criteria effective October 23, 2008. In this case, the primary evidence of record consists of the report of a VA compensation and pension examination conducted in December 2008. At the examination, the Veteran remarked that he experienced eczema on his elbow, buttocks, groin, and feet. He related that he had experienced his eczema fairly continuously with variable intensity. It was noted that in the past, the Veteran had been treated with PUVA light therapy, although he had not received light therapy recently. The Veteran stated that he had continuous and constant itching, flaking, and redness. He treated his skin with topical hydrocortisone 10% on a daily basis. The examiner objectively observed patches of erythema with white flaking, raised bumps, itching, scaling, and excoriations. The examiner further noted that he was examining the Veteran during a flare-up. In an addendum, the examiner remarked that 10 percent of the Veteran's skin was covered by eczema. A subsequent April 2009 VA treatment record reflects that the Veteran was service-connected for "psoriasis," which was not bothering him at the time. The examiner noted a diagnosis of stable psoriasis. As just noted, the medical evidence of record does not reflect that the Veteran's eczematoid dermatitis at least 20 percent of the Veteran's entire body or exposed area during the time period relevant to this appeal. Moreover, the medical evidence of record does not reflect that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a period totaling six weeks or more during this time period. The Board recognizes that the Veteran treats his skin with topical hydrocortisone on a daily basis; however, topical hydrocortisone is not a corticosteroid or immunosuppressive drug. The Board has considered the Veteran's own reports as to the severity of his skin disorder, and recognizes that he clearly competent to describe the symptoms of a skin rash. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg"). However, the Veteran's statements as to the nature and severity of his skin condition are contradicted by the December 2008 VA examination report (including the indication that the Veteran's eczema covered 10 percent of his body during a flare-up) and the April 2009 VA treatment record (indicating that the Veteran's skin condition was stable and not bothering him at the time). The Board finds the objective medical findings of the competent VA examiner to ultimately be more reliable than the vague, subjective descriptions offered by the Veteran. The Board sympathizes with the Veteran's difficulties, but the most probative establishes that his skin disorder does not affect at least 20 percent of either his body or his exposed areas. The Board additionally recognizes that the Veteran has been treated with light therapy in the past. Indeed, the Veteran has submitted private medical records which reflect that he was treated with light therapy. However, these records reflect that the Veteran last underwent light therapy in 2003, and he filed his present claim in 2007. As such, they do not reflect that the Veteran underwent light therapy at any time relevant to the present claim. The Board has reviewed the remaining diagnostic codes relating to skin disabilities but finds that they are inapplicable in this case. See 38 C.F.R. § 4.118 (2012). Specifically, the Board notes that the Veteran has not been noted as having scars due to his eczema dermatitis. Therefore, the Board finds the Veteran is most appropriately evaluated under Diagnostic Code 7806, as opposed to any of the criteria or revised criteria for evaluating scars. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected eczematoid dermatitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the preponderance of the evidence is against the claim for a rating higher than 10 percent for the Veteran's service-connected eczematoid dermatitis for the period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. ORDER Entitlement to a disability rating in excess of 10 percent for eczematoid dermatitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs