Citation Nr: 1308554 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 08-33 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable rating for eczema. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to December 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In addition to appealing the assigned rating for service-connected eczema, the Veteran also appealed the RO's September 2007 assignment of a noncompensable rating for service-connected hypertension with secondary erectile dysfunction. The issues went before the Board in April 2012 at which time the Board assigned separate ratings for the Veteran's hypertension (10 percent) and erectile dysfunction (0 percent), and remanded the claim for an initial compensable rating for eczema for additional development; namely, to afford the Veteran a VA examination and to obtain any outstanding medical evidence. A request for information regarding outstanding medical treatment for eczema was sent to the Veteran in April 2012, and a request that he be scheduled for a VA examination was made in April 2012. Thus, there has been substantial compliance with the Board's April 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In January 2012, the Veteran initiated an appeal of the RO's December 2011 denial of the claim for service connection for glomerulonephritis. He initiated an appeal by filing a timely notice of disagreement. See 38 C.F.R. § 20.201. However, he did not perfect an appeal of this issue by filing a substantive appeal following the issuance of a statement of the case in March 2012. See 38 C.F.R. § 20.202. Accordingly, this issue it will not be further addressed as it has not been perfected for appellate review. 38 C.F.R. § 20.200. FINDING OF FACT For the entire appeal period, the service-connected eczema is intermittent and involves less than 5 percent of the entire body surface and less than 5 percent of exposed areas and it is not shown to have required constant or near-constant systemic therapy, such as with corticosteroids or other immunosuppressive drugs, during a 12-month period and does not cause any related scarring or disfigurement of the head, face or neck. The Veteran failed to report for an examination requested to ascertain whether there was an increase in symptoms. CONCLUSION OF LAW The criteria for an initial compensable rating for service connected eczema have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.655, 4.118, Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, because this appellate issue is a downstream issue from that of service connection (for which a February 2007 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003. In the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. With respect to the claim presently on appeal, the Board finds that the appellant is not prejudiced by a decision at this time. The appellant was given notice of the disability rating and effective date elements in the February 2007 letter. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claim, including pertinent treatment records. The appellant was additionally provided with the opportunity to attend a Board hearing, but he did not request such a hearing. In terms of affording the appellant a VA examination, the appellant was afforded a QTC examination in March 2007 as well as in June 2007 and May 2011, and was scheduled to undergo a VA examination in June 2012 which he failed to report to. In regard to the Veteran's failure to report to the June 2012 VA examination, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. (emphasis added). Dissatisfaction with an initial rating is part of the original claim while a claim for an increased rating is a new claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). Also, as a threshold matter, when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a) (2012); Turk, 21 Vet. App. at 569. In this case, the Veteran did not provide any reasons for missing the June 2012 examination and therefore lacked good cause. Also, in view of the available medical findings of record with respect to the Veteran's skin disability, the claim will be based on the evidence of record. Id. As far as the QTC examinations noted above, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2007 examination report as well as the June 2007 and May 2011 reports contain sufficient findings with which to properly evaluate the appellant's pending claim and are thus deemed adequate for rating purposes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The reports includes the appellant's pertinent medical history and pertinent examination findings. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim being decided herein and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Analysis Pertinent Law and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran seeks a compensable rating for eczema. He is currently evaluated under 38 C.F.R. § 4.118, Diagnostic Code (Code) 7806. Code 7806 directs that, for dermatitis or eczema, when the disorder covers less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy is required during the past 12- month period, a 0 percent rating is assigned. A 10 percent rating is assigned when at least 5 percent, but less than 20 percent of the entire body is covered; or at least 5 percent, but less than 20 percent of exposed areas are affected; or intermittent systemic therapy, such as corticosteroids / other immunosuppressive drugs, are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema, affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that 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 disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. Code 7806 also directs that dermatitis or eczema should be rated as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). The schedular criteria by which skin disabilities are rated were recently revised, effective October 23, 2008, so that it more clearly reflects VA policies concerning the rating of scars. 73 Fed. Reg. 54,708-54,712 (September 23, 2008). Because these modifications were expressly made applicable only to claims filed on or after the effective date, they are not applicable to the instant claim, which was originally received in January 2007. In considering the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's eczema is appropriately evaluated as noncompensable. In this regard, findings on examination in March 2007 reveal that the Veteran's eczema, which he reported as causing itching and shedding of the skin affecting mainly the extremities, back and chest, covered less than 1 percent of the total body surface area. Findings revealed a few patches of eczema scattered on the upper and lower extremities and hands. This does not meet the criterion for a 10 percent rating requiring that at least 5 percent, but less than 20 percent of the entire body be covered. Also, an undated telephone contact record from QTC to the Veteran reveals that he was using fluocinonide ointment USB 0.5% daily that had been prescribed by his physician. He also reported using over the counter moisturizers and lotions. This does not satisfy the criterion for a 10 percent rating requiring intermittent systemic therapy, such as corticosteroids / other immunosuppressive drugs. Although the QTC examiner in March 2006 also noted that the lesions represented "approximately" 5% of the exposed areas, subsequent skin findings on QTC examinations in June 2007 and May 2011 were negative for skin findings at all and specifically revealed no ulceration, edema or statis dermatitis of the extremities. In fact, the only record of treatment for skin problems following the March 2006 QTC examination is an August 2010 record from Roosevelt Family Medical noting that the Veteran had a pruritic rash on his hands and arms with questionable exposure to something. He was assessed as having dermatitis - non specific, with a questionable allergic component. He was prescribed Benadryl and a topical ointment (Clobetasol, 0.05%). The Veteran, as a layman, is competent to report the existence of his skin symptoms, to include itching and scaling. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not convincingly challenged the body area affected by his service-connected skin disability and the exhibited symptoms, even considering his claims of itching and scaling, do not warrant a compensable evaluation. In regard to the body area affected, the Veteran has been inconsistent in his reports thus making his assertions not credible. In this respect, the Veteran reported on his substantive appeal in October 2008 that he has eczema on at least 5% of his body. This is inconsistent with his May 2008 notice of disagreement wherein he acknowledged that his eczema does not affect 5% of his body. It is also inconsistent with the QTC findings in March 2007 showing that the eczema was less than 1% of his total body surface area. In short, the weight of evidence shows that the Veteran does not meet the criteria for a compensable, 10 percent, rating under Code 7806 requiring that at least 5 percent, but less than 20 percent of the entire body is covered; or at least 5 percent, but less than 20 percent of exposed areas are affected; or intermittent systemic therapy, such as corticosteroids / other immunosuppressive drugs, are required for a total duration of less than six weeks during the past 12-month period. Also, it is important to keep in mind that the Veteran was afforded an examination in June 2012 in order to determine the present severity of his skin disability. This was necessitated in part due to an indication that the condition may have worsened since his last examination in March 2007. Unfortunately, as explained above, that he failed to report to a scheduled examination in June 2012 without showing good cause. Accordingly, the Board is left with deciding the claim based on the evidence presently of record. 38 C.F.R. § 3.655. The evidence did not warrant a compensable rating prior to remand, and failure to appear for the exam means there remains no basis for an increased rating. The Board has further considered additional applicable diagnostic codes that the Veteran's service-connected disability may be rated under, such as the Diagnostic Codes pertaining to scars. However, the evidence clearly shows that the Veteran's predominant disability is eczema, which is specifically contemplated in Code 7806. Moreover, the Veteran has not alleged, nor does the clinical record show, that he has any scars. Rather, findings from the May 2011 QTC examination revealed no scars on skin examination. Therefore, the Veteran's service-connected eczema does not warrant an increased rating under any of the potentially applicable diagnostic code. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's eczema are fully contemplated by the applicable rating criteria. As shown above, the criteria include the percentage of area covered by the skin disability and the type of treatment prescribed to treat it. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is thus not required and referral for consideration of an extraschedular rating for eczema is not warranted. 38 C.F.R. § 3.321(b)(1). Finally, there is no indication from the record that the Veteran is unemployed due to this disability so the issue of a total rating based on individual unemployability is not raised by the record. In this regard, the Veteran indicated in an August 2010 statement that he had a job position with the Military Sealift Command. Based on the foregoing, the Board finds that the weight of evidence of record is against the assignment of an initial evaluation for eczema under Code 7806. Accordingly, the Board finds that an initial compensable evaluation for eczema is not warranted, and the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial compensable rating for eczema is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs