Citation Nr: 1306195 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-44 227A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial compensable disability rating for epidermolysis bullosa. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2008 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. On the Veteran's substantive appeal (VA Form 9), received at the RO in October 2010, she requested a hearing before a Veterans Law Judge sitting at the RO. The hearing was scheduled for June 2012. The Veteran was notified of this hearing in a June 2012 letter. The Veteran did not appear for this hearing and has not given a reason for her failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704 (d) (2012) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). FINDINGS OF FACT 1. The Veteran's STRs show that she was diagnosed with epidermolysis bullosa while in service. 2. A VA examiner concluded in 2009, that Veteran's skin disorder affected her hands and feet, covering less than a 5 percent surface area. 3. The Veteran epidermolysis bullosa is productive of monthly painful blisters on the heels of her feet, analogous to scars that are unstable or painful. CONCLUSION OF LAW The criteria for an initial 10 percent rating for epidermolysis bullosa are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804, 7815, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). In November 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete her original claims for service connection, including what part of the evidence she was to provide and what part VA would attempt to obtain for her. The Veteran was also provided with the required notice regarding the regulations governing disability ratings and effective dates as required by the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thereafter, the claim was adjudicated in February 2010. The Veteran's epidermolysis bullosa claim on appeal is deemed to have arisen from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, in this instance, no further notice is needed under the VCAA. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her 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 treatment records (STR's) and the Veteran was afforded a VA examination in December 2009 which produced sufficient clinical evidence to determine the proper rating to be assigned for the service-connected epidermolysis bullosa. In addition, the Veteran was afforded the opportunity to testify before the Travel Board; however, the Veteran failed to appear for the hearing. 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 her 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). Analysis 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disabilities of bullous disorders, such as epidermolysis bullosa, are rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7815. A 0 percent rating is assigned where there is less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period. A rating of 10 percent requires 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. The condition also may be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or as scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. In the instant case, the RO granted service-connection for epidermolysis bullosa in a February 2010 rating decision. The RO rated the Veteran's disability at 0 percent. A review of the entire record shows that the Veteran's STR's indicate that she was diagnosed with epidermolysis bullosa while in service. In a December 2009 VA examination, the examiner found that the Veteran had calluses on her heels, bilaterally occupying less than 5 percent of the surface area. Her hands did not show any signs of active lesions or calluses. Given the percentage of the total body surface and exposed areas affected by the Veteran's epidermolysis bullosa as shown in the examination report, it is clear that this condition does not involve 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, as required for increased compensation under DC 7815. Further, there is no indication that the Veteran was undergoing 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. 38 C.F.R. § 4.118, DC 7815. While the VA examiner noted that the Veteran was using a hydrocortisone cream, it was also noted that the skin disorder was contained to her hands and feet. The use of the topical steroid cream by the Veteran 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). Here, it is not found that the Veteran is required to use the cream for more than a topical therapy for the areas affected. In addition, it was reported that the hydrocortisone cream was used only as needed and no other medications were being used to treat the condition. Given the foregoing, a basis upon which to grant a compensable evaluation under Diagnostic Code 7815 has not been presented. However, with a monthly history of recurring blisters on the heels of both feet, which are painful when the occur, the condition may be evaluated analogously under Diagnostic Code 7804 as unstable or painful scars. Because there are eruptions on each of the heels, the criteria for a 10 percent rating under this code is met. Given the size and location of the area affected by these blisters, higher evaluations under other Diagnostic Codes that evaluate scars are not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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). The Board finds that the rating criteria contemplate the Veteran's disability, and provide for higher ratings for additional manifestations. The rating criteria are therefore adequate to evaluate the Veteran's skin disability and referral for consideration of extraschedular rating is not warranted. The Untied States Court of Appeals for Veterans Claims has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of an increased rating claim, if raised by the record. Here is it not shown the Veteran has been unable to find employment because of her skin condition, and as such, further consideration of a TDIU claim is not warranted. ORDER Entitlement to a 10 percent disability evaluation for epidermolysis bullosa is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs