Citation Nr: 1307436 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-19 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable evaluation for contact dermatitis (skin disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from March 1970 to February 1978, from September 2001 to April 2002, and from July 2005 to February 2006, including service in Kuwait/Iraq from January 2005 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for contact dermatitis and assigned noncompensable evaluation effective February 11, 2006. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in November 2009. A transcript of the hearing has been associated with the claims file. In June 2010, the Board remanded the present matter for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, while the Veteran has submitted evidence of unemployability, the evidence does not show nor does the Veteran contend that his skin disability causes him to be unemployable. On the contrary, the Veteran affirmatively denied restrictions and reported that he could perform his work without difficulty, and the most recent VA examiner noted no functional impact or impact on employability. Therefore, the Board finds that the issue of TDIU is not currently before the Board. Further, in June 2010, the Board referred the issue of TDIU to the Agency of Original Jurisdiction (AOJ). However, it does not appear that any action has been taken on that claim. Accordingly, the matter is again referred to the AOJ for appropriate action. Additionally, in an August 2012 statement, the Veteran raised claims for increased ratings for hearing loss, tinnitus, and a low back disability. Those issues have not been adjudicated by the AOJ and the Board does not have jurisdiction over them. Therefore, they are also referred to the AOJ for appropriate action. FINDING OF FACT Resolving all reasonable doubt in his favor, since February 11, 2006, the date of service connection, the Veteran's skin disability has required intermittent systemic therapy such as corticosteroids for a total duration of less than 6 weeks during a 12-month period. CONCLUSION OF LAW Since February 11, 2006, the criteria for a 10 percent rating, but not higher, for a skin disability have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran's claim for a compensable rating for a skin disability arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. 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). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Further, he has been provided with appropriate VA examinations in connection with his present claim, most recently in June 2010. The Board finds that the VA examinations are adequate to decide the case because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the skin disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Further, the June 2010 VA examination report shows that the Veteran's skin disability was active at the time of the examination. Therefore, the Board finds that the RO has fully, or at a minimum substantially, complied with the Board's June 2010 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. Those duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing, the VLJ explained the issue on appeal and asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating, including what percentage of the Veteran's body was affected when his skin condition is active. The VLJ did not note the bases of the prior determination or the criteria necessary to substantiate the increased rating claim or specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran indicated that he would be submitting additional private treatment records in conjunction with the hearing, and further, volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his skin disability. Accordingly, the Veteran is not shown to be prejudiced on this basis. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012). The Board notes that the Veteran's Virtual VA eFolder must be reviewed as the eFolder is an extension of the paper file. Review of the Veteran's eFolder revealed no further relevant evidence that has not already been associated with the claims folder. The Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Initially, the Board observes that the schedular rating criteria pertaining to the skin were recently amended, effective October 23, 2008. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012); 67 Fed. Reg. 49590 -49599 (July 31, 2002). VAOPGCPREC 3-00, 65 Fed. Reg. 33422 (2000); 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012). However, those amendments only apply to applications received by VA on or after October 23, 2008, or where the Veteran expressly requests consideration under the new criteria, which he has not done here. Therefore, the Board has no authority to consider those revisions in deciding the Veteran's claim. The RO awarded service connection for contact dermatitis in a June 2007 rating decision. An initial noncompensable disability evaluation was assigned under 38 C.F.R. § 4.118, Diagnostic Code 7806, effective February 11, 2006. Diagnostic Code 7806 pertains to dermatitis or eczema. The record shows that, in addition to contact dermatitis, the Veteran is diagnosed with intermittent eczema. Accordingly, the Board agrees that the Veteran's skin disorder is most appropriately rated under Diagnostic Code 7806. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and with no more than topical therapy required during the past 12-month period, is rated as 0 percent disabling. Dermatitis or eczema that involves 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, is rated 10 percent disabling. Dermatitis or eczema that involves at least 20 percent, but less than 40 percent, of the entire body, or at least 20 percent, but less than 40 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more during the past 12-month period, is rated 20 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7806. Following a careful review of the claims file, the Board finds that a disability rating of 10 percent, but not higher, is warranted for the Veteran's skin disability. Private and VA treatment records show intermittent use of corticoid steroids for the Veteran's skin disorder. For example, in August 2007, the Veteran complained of a rash since September 2005 that became worse in the last month. Physical examination revealed a lichenified rash in the bend of the elbows and the back of the Veteran's neck. A VA provider administered Decadron and Depo-Medrol intramuscularly and also prescribed a Medrol dose pack. The Veteran was seen by VA again in December 2007 for a rash affecting the flexural surfaces of his extremities, upper trunk, and posterior neck. At that time, prednisone was offered to the Veteran, but he declined. A September 2009 private treatment record also shows a prescription for prednisone for a persistent papular rash. The evidence shows that the Veteran's eczema has required, or at least warranted, intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs to more nearly approximate a 10 percent disability rating under Diagnostic Code 7806. However, the preponderance of the evidence shows that systemic therapy has not been required for a duration of more than 6 weeks during any 12-month period on appeal, to warrant a higher 20 percent rating. The record indicates that systemic therapy was prescribed on only two occasions during the entire period on appeal, and recommended on one other occasion. VA treatment records show that corticosteroids were prescribed in August 2007 and recommended in December 2007, but are otherwise negative for any evidence of systemic therapy. Moreover, private records are negative for evidence of systemic therapy except for the prednisone prescribed in September 2009, and at his November 2009 hearing, the Veteran indicated that the medication was prescribed for only one week. Nor does the evidence show that at any time during the period on appeal the Veteran's skin disability has affected at least 20 percent, but less than 40 percent, of the entire body, or at least 20 percent, but less than 40 percent, of exposed areas affected. On the contrary, the Veteran was afforded VA examinations in connection with his claim and VA examiners have consistently found that the Veteran's skin disability affects at most, two percent of his total body area and zero percent of his exposed skin. See VA examinations dated April 2007 and June 2010. The Board acknowledges that during his November 2009 Board hearing, the Veteran testified that his daily activities are affected by his skin condition, in that it affects the clothes that he wears and interferes with his sleep at times, and further, that his skin condition affects between 40 to 50 percent of his body. However, during his April 2007 VA examination, the Veteran denied restrictions due to his skin condition and indicated that he could perform his work without difficulty. Similarly, the most recent June 2010 VA examiner noted no systemic symptoms or functional impairment attributable to the Veteran's skin disorder. Moreover, as previously stated and contrary to the Veteran's assertion, VA examiners have found no more than two percent of the Veteran's total body surface area affected by his skin disability. The Board acknowledges that the Veteran is competent to testify as to the presence of his skin disability. However, to the extent that the Board finds that the Veteran's assertions regarding the extent of his disability to be of lesser probative value than the clinical findings of the VA medical examiners, which were based on their medical expertise and their training and experience as VA medical examiners. In light of the foregoing, the Board finds that since the date of service connection, the Veteran's skin disability has more nearly approximated a 10 percent initial disability rating, as the evidence tends to show that intermittent use of systemic therapy is required. However, the preponderance of the evidence is against a rating higher than 10 percent for the service-connected skin disability, as there is no evidence of involvement of least 20 percent of the entire body or of exposed area affected, or evidence that systemic therapy is required for more than 6 weeks during a 12-month period. Accordingly, a claim for a disability rating in excess of 10 percent must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to whether the record raises the matter of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board agrees with Veterans of Foreign Wars, which in January 2013 written argument in support of the Veteran's claim for a compensable schedular rating for his skin disability acknowledged that consideration of entitlement to an extraschedular rating was not warranted, and finds that the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected skin disability is adequate and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an initial 10 percent rating, but not higher, for a skin disability is granted effective February 11, 2006. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs