Citation Nr: 1306463 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 08-33 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for atopic dermatitis, eczematoid type, prior to March 12, 2009. 2. Entitlement to an increased evaluation for atopic dermatitis, on an extraschedular basis, as of March 12, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to September 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that assigned an increased evaluation of 30 percent for the Veteran's atopic dermatitis, effective March 12, 2009. The Veteran testified at a Board hearing at the RO in Seattle, Washington in October, 2010. This transcript has been associated with the file. This case was previously brought before the Board in May 2011 at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal, to include scheduling him for a VA examination. Also in the May 2011 Board decision the Veteran was assigned a 60 percent evaluation for his atopic dermatitis for the period beginning March 12, 2009. The Veteran appealed that part of the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010 the Court endorsed a Joint Motion for Remand vacating the Board's assignment of a 60 percent evaluation as of March 12, 2009 and remanding the matter for further proceedings. In a March 2012 Board decision the Veteran was assigned an 80 percent evaluation for his atopic dermatitis as of March 12, 2009. The Veteran's claim for entitlement to a total disability rating based on individual unemployability (TDIU) was granted in a December 2012 rating decision. As such, this issue is no longer on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he should be awarded an evaluation in excess of 30 percent for his atopic dermatitis prior to March 12, 2009. An August 2010 notice from the Veteran indicated that he was receiving benefits from the Social Security Administration (SSA). However, the VA has not obtained any records from the SSA. Although this was noted in the May 2011 Board remand, no action was taken on the issue. Therefore, on remand the AOJ should request any available SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA cannot ignore SSA determination of disability but must provide reasons or bases regarding such determination); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). The Board has also considered whether an extraschedular evaluation is warranted for the Veteran's atopic dermatitis as of March 12, 2009. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In this case, the evidence reflects that the Veteran testified that he was unable to work due to his atopic dermatitis, both because of the condition itself and the side effects of the medication he has to take to keep his symptoms controlled. See October 2010 Board hearing transcript and July 2011 VA examination report. As such, the Board finds that the extraschedular portion of Veteran's claim for an increased evaluation for his atopic dermatitis, as of March 12, 2009, must be remanded for referral to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 2. Submit the increased evaluation on an extraschedular basis for atopic dermatitis to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 3.321(b).The Director should take the following evidence into account: i) The July 2011 VA examiner's opinion regarding the Veteran's ability to work. ii) The Veteran's October 2010 Board hearing testimony regarding how his atopic dermatitis caused marked interference with employment. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).