Citation Nr: 1314103 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 05-32 348A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for atopic dermatitis and eczema beginning March 25, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to January 1994. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2002 rating decision of the Houston, Texas, Regional Office (RO), which denied the Veteran's claim for a compensable evaluation for dermatitis. He perfected a timely appeal to that decision. In February 2009, the Board remanded the case for further evidentiary development. In an April 2010 rating decision, the Appeals Management Center (AMC) recharacterized the Veteran's skin condition to atopic dermatitis/eczema and increased the evaluation from 0 percent to 30 percent, effective March 25, 2009. A supplemental statement of the case (SSOC) was issued in April 2010. Insomuch as a higher rating is available for the skin condition, and as the claimant is presumed to be seeking the maximum available benefit for a given disability, that issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2010, the Board granted a 10 percent disability evaluation for dermatitis prior to March 25, 2009, but remanded the issue of entitlement to a rating in excess of 30 percent beginning March 25, 2009 for further evidentiary development. Following the requested development, an SSOC was issued in July 2011. In November 2011, the Board again remanded the case for still further evidentiary development. The Appeals Management Center (AMC) completed the requested development and issued another SSOC in June 2012. Review of the record reflects substantial compliance with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT For the period beginning March 25, 2009, the Veteran's atopic dermatitis and eczema has been manifested by involvement of 5 to 10 percent of the body, and 5 percent of exposed areas, without systemic manifestations, and without requirement of ongoing immunosuppressive therapy, without requirement of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs, and without requirement of constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the period beginning on March 25, 2009, for atopic dermatitis and eczema, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7817 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in April 2002 from the RO to the Veteran which was issued prior to the RO decisions in September 2002 and November 2002. Additional letters were issued in November 2007, July 2008, August 2009, and November 2011. Those letters informed the Veteran of what evidence was required to substantiate the claim for a higher rating and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded VA examinations with respect to the issue in question. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issue addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). They were also provided in connection with the February 2009 and July 2010 Board remands. The Board finds that there was substantial compliance with the Board remands. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. By a rating action in August 1994, the RO granted service connection for dermatitis, back; a noncompensable evaluation was assigned, effective January 16, 1994. The Veteran's initial claim for a compensable rating for dermatitis was received in November 2002. By a rating action in April 2010, the AMC recharacterized the Veteran's skin condition to atopic dermatitis/eczema and increased the evaluation from 0 percent to 30 percent, effective March 25, 2009. Subsequently, in July 2010, the Board assigned a 10 percent disability rating for atopic dermatitis and eczema, prior to March 25, 2009 and remanded the issue of entitlement to a rating in excess of 30 percent to the RO for a current examination. The Veteran was afforded a VA examination in March 2009, at which time he reported that the rash started on his back but then progressed to his face, arms, legs, chest and ears; he described the rash as constant, but noted that the itching comes and goes. The Veteran stated that the symptoms were not associated with the weather. He was told that he has dry skin. It was noted that the Veteran's condition was a constant pruritic rash for which the Veteran uses a topical cream; he was not taking any corticosteroids or other immunosuppressive drugs. On examination, it was noted that the Veteran had dry scaly skin, with scaly plaques on the posterior/lateral side of his neck. He also had some small healing papules in the beard area. The examiner reported that the percent of exposed areas affected by the rash was less than 30 percent, and the percent of total body area affected was less than 20 percent. The pertinent diagnosis was eczema/atopic dermatitis, which the examiner stated is at least as likely as not was diagnosed in service. In an addendum to the above examination, dated in February 2010, the VA examiner stated that the Veteran's skin on examination in March 2009 revealed dry skin, with scaly plaques on the posterior/lateral side of the neck. He also noted that the Veteran had some small healing papules in the beard area. The examiner stated that the appropriate diagnosis is eczema and atopic dermatitis. On the occasion of a VA examination in October 2010, it was noted that the Veteran had significant pruritus. Examination revealed erosions and vesicles on the fingers and palms. He had hyperpigmented scaly plaques on bilateral lower extremities, chest and back. The diagnosis was eczema; however, the examiner stated that biopsy or patch testing should be performed to rule out allergic contact dermatitis and mycosis fungoides. The examiner noted that the condition involved 5 to 10 percent of the body surface area. He stated that the best diagnosis that can be given is xerotic eczema. Received in November 2011 were treatment notes from Dr. Jon K. Stern, which show that the Veteran was seen in December 2010 for evaluation of a rash on the dorsal hands and arms. He also complained of itching. Examination of the hands revealed hyperkeratic plaques and vesicles on the sides of the fingers, trunk and extremities. The diagnosis was dermatitis; the Veteran was prescribed Clobetasol cream. He was again seen in January 2011 for dermatitis on the dorsal of the hands. When seen in March 2011, the Veteran indicated that he was a little better, but still itching. The Veteran was afforded another VA examination in December 2011. It was noted that the Veteran had had numerous appointments with dermatology. The records show that the Veteran had an evaluation with dermatology on December 5, 2011, which states that he has been experiencing eczema throughout the body, including arms, hands, abdomen and buttocks for many years; however, the hand eczema just began this year. The Veteran complained of constant pruritus, with dryness throughout the above-mentioned areas. He has seen a private dermatologist who prescribed Desonide cream, Lidex E cream, and triamcinolone cream; he also received a hydrocortisone shot from the private dermatologist, which provided some temporary relief. The Veteran has been on Clobetasol in the past, but he stated that there was minimal improvement. He was currently on Taclonex to the hands and TAC cream to the back. He works in material management and opens packages all day. The Veteran was also noted to have skin lesions characterized as multiple areas of dry skin, with hyperpigmented scaly plaques present over the abdomen, back, axillae, feet, and scalp. Skin lesions were also noted on the hands with diffuse hyperkeratosis and fissuring with well demarcation on the sides of the hands; also involvement of the knuckles. Currently, the Veteran reported intense pruritus to the affected area which includes the arms, hands, legs, feet, trunk and buttock. The Veteran noted that he was only using Clobetasol with some relief. On examination, the examiner stated that the Veteran's skin is eczema dermatitis; he noted that the condition does not cause scarring or disfigurement of the head, face or neck. It was noted that the Veteran does not have any benign or malignant skin neoplasms, and he does not have any systemic manifestation due to skin diseases. It was reported that the Veteran's condition is treated with a topical cream. The examiner reported that the skin condition affected 5 to 20 percent of the entire body surface and less than 5 percent of the exposed body surface. The examiner stated that the Veteran's skin condition had a mild to moderate impact on his occupation due to pruritus, dry skin and occasional bleeding of the palms. III. Legal Analysis. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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 at 54. As noted above, the Veteran initially filed his claim for an increased rating for dermatitis in November 2002; during the pendency of his appeal, the schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008); see also 38 C.F.R. § 4.118, DCs 7800 to 7805 (2012). However, because the amended regulations apply only to claims received by VA on or after October 23, 2008, and because the criteria by which dermatitis is rated were unaffected, that version of the skin regulations will not be applied here. See id. The Veteran is currently rated under Diagnostic Code 7817. Under Diagnostic Code 7817, a 30 percent rating is warranted for any extent of involvement of the skin, and: systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted for exfoliative dermatitis with generalized involvement of the skin without systemic manifestations that required constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy during the past 12-month period. A 100 percent rating is warranted for exfoliative dermatitis with generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia) that required constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7817. As noted above, in order to warrant a rating of 60 percent, the next higher rating, the Veteran would need to show generalized involvement of the skin without systemic manifestations, and; constant or near constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy during the past 12 month period. A review of the Veteran's medical records shows that he had active lesions on his arms, hands, scalp, legs, feet, trunk and buttocks. He was using several topical medications on a constant basis to control the lesions. The Veteran complained of constant itching with dryness. However, the Veteran had no scarring and no disfigurement. The records show no systemic manifestations such as fever or weight loss connected with the lesions. In addition, no systemic therapies were provided to the Veteran. The Veteran's skin condition has never affected more than 20 percent of the total body area affected. In fact, during the March 2009, the VA examiner noted that the percent of exposed areas affected by the rash was less than 30 percent, and the percent of total body area affected was less than 20 percent. In October 2010, only 5 to 10 percent of the body surface area was affected by the dermatitis. More recently, the December 2011 VA examiner noted that the dermatitis affected 5 to 20 percent of the entire body surface and less than 5 percent of the exposed body surface. The examiner noted that the Veteran was only using a topical medication to control his condition and there was no disfigurement and no scarring. No malignant lesions were noted throughout his years of treatment. Moreover, none of the medical evidence reflects that the Veteran is treated with or has ever been treated with any type of systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy. As such, the Board finds that a higher rating by analogy is not warranted under Diagnostic Code 7817. The Board has considered all other potentially-applicable provisions under 38 C.F.R. Part 4 in order to determine whether the Veteran would warrant a higher rating under a different Diagnostic Code. The Board finds that no other potentially applicable Diagnostic Code affords the Veteran a higher evaluation. There is no evidence that the Veteran's disability affects more than 40 percent of the body or exposed areas. Therefore, entitlement to an increased rating under Diagnostic Codes 7806 (dermatitis), 7816 (psoriasis), 7821 (cutaneous manifestations of collagen vascular disease), or 7822 (papulosquamous disorders) are not applicable. Furthermore, the record overall is negative for any opinion or evidence that the Veteran was disfigured or that he has scars as a result of the service-connected dermatitis. Therefore, Diagnostic Codes 7800 to 7805 are not applicable. The Board has also considered the Veteran's statements describing the discomfort caused by his dermatitis. These assertions have been taken into consideration when affording the Veteran the current rating of 30 percent. In summary, and for the reasons and bases set forth above, the Board concludes that the Veteran is appropriately rated at 30 percent for atopic dermatitis and eczema beginning March 25, 2009. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The claim for a rating in excess of 30 percent for atopic dermatitis and eczema beginning March 25, 2009 is denied. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. In this regard, the Board notes that the Veteran's atopic dermatitis, in and of itself, has not been shown to objectively interfere markedly with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran's symptoms are contemplated by the 30 percent rating, as such rating contemplates involvement of the skin to any extent. The 30 percent rating also contemplates systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period. The Veteran uses only topical creams for his skin disability. Thus, the Veteran's level of disability contemplates an additional requirement that the Veteran does not have. Therefore, the Veteran's disability picture is more than contemplated by the rating schedule and no extraschedular referral is required. ORDER Entitlement to a rating in excess of 30 percent for atopic dermatitis and eczema beginning March 25, 2009 is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs