Citation Nr: 1314224 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 09-21 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial compensable rating for chronic dermatitis. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, in which the RO, in pertinent part, granted service connection and assigned an initial, 0 percent (noncompensable) rating for chronic dermatitis, effective May 20, 1996. When this case was previously before the Board in May 2011, it was decided in part and remanded in part for additional evidentiary development; it has since been returned to the Board for further appellate action. The issue of entitlement to service connection for hypertension was previously before the Board in May 2011. Subsequently, the Appeals Management Center in Washington, DC, granted entitlement to hypertension in a May 2012 rating decision; therefore, this issue is deemed moot. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's chronic dermatitis is manifested by subjective complaints of itching, swelling of the feet, shedding with bleeding and draining, with objective evidence of fine pinpoint erythremic rash to tops of both feet affecting less than five percent of the total body area, with no more than topical corticosteroid therapy required. CONCLUSION OF LAW The criteria for an initial compensable rating for service-connected chronic dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The RO's September 2007 letter and May 2009 statement of the case (SOC) advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the notice and SOC informed the Veteran of what evidence was required to substantiate his claim for increased disability rating and of his and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence or information in his possession to the RO. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also provided the Veteran with a medical examination to determine the severity of his chronic dermatitis. 38 C.F.R § 3.159(c) (4). The Board finds that the VA examination obtained in this case is adequate for evaluation purposes as it provides sufficient detail to determine the severity of the Veteran's chronic dermatitis. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Service connection for chronic dermatitis was granted by an April 2008 rating decision and a noncompensable evaluation was assigned under 38 C.F.R. § 4.118, Diagnostic Code 7806, effective May 20, 1996, the date of service connection. VA treatment records in November 1995 showed a mycology culture of a skin sample from the Veteran's foot that revealed a bacteria contaminant. VA treatment records in April 2009 showed a 2 by 3 centimeter eczematous rash developing on the Veteran's left foot, and he complained of itching and noted trying ointment in the past. In response to the Board's remand, the Veteran was afforded a VA examination in June 2011 in which he reported using creams for treatment with generally no effect on the rash on his feet and ankles bilaterally. He reported that his feet would swell up, the skin rips off, and then the skin would bleed and drain. He also reported itching. No light therapy or oral steroids were noted. Skin examination findings showed fine pinpoint erythremic rash to tops of both feet; small patches distal to base of toes on both right and left feet; small amount of peeling top layer of skin on right foot, inner ankle. The VA examiner diagnosed dyshidrotic dermatitis and stated that the severity of the chronic dermatitis was less than five percent of the entire body, less than five percent of exposed areas affected, and no more than topical corticosteroid therapy has been required during the prior 12-months period. The Veteran's service-connected chronic dermatitis is currently rated under Diagnostic Code 7806. A noncompensable evaluation is warranted for dermatitis when 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent evaluation is warranted for dermatitis 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. A 30 percent evaluation is warranted for dermatitis that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Review of the evidence of record shows that the Veteran's service-connected chronic dermatitis does not affect at least five percent of the entire body or of exposed areas. Moreover, the record does not show that treatment for this disability has ever required systemic therapy. Accordingly, the criteria for a compensable rating under Diagnostic Code 7806 for the Veteran's service-connected chronic dermatitis are not met. In making this determination, the Board considered the lay evidence of record to include the Veteran's reports to VA examiners. The Board finds the Veteran competent and credible. Nevertheless, the Veteran does not contend that his service-connected chronic dermatitis affects at least five percent of the entire body or of exposed areas or that treatment for the disability has ever required systemic therapy. During the pendency of this appeal, VA revised the criteria for evaluating disabilities of the skin, effective October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). "[W]hen [a veteran's] claim implicates a statute or regulation enacted during the pendency of that claim, VA's first task is to determine whether the statute or regulation expressly speaks to its temporal reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed a new claim for benefits in September 2007. Given that the temporal reach of the October 23, 2008 amendment is prescribed, VA is under no obligation to ascertain the presence of retroactive effects and will implement the prescribed temporal applicability, which, in this case, renders the October 23, 2008 criteria inapplicable to the Veteran's claim at issue herein. See VAOPGCPREC 7-03 (2003). The evidence shows no distinct periods of time during the appeal period, during which the Veteran's service-connected chronic dermatitis has varied to such an extent that a compensable rating would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings); Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the current rating inadequate. The Veteran's service-connected dermatitis is evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7806, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability. Id. The Diagnostic Code 7806 evaluates skin disabilities by the percentage of total body areas or exposed areas affected by the skin disability. The visible skin symptoms reported by the Veteran are contemplated by this diagnostic code by the percentage of total body areas or exposed areas affected by the skin disability. Additionally, this diagnostic code evaluates the severity of a skin disability by the necessary treatment measure, which contemplates non-visible symptoms, such as pain, itching, or any other symptoms are not reasonably measurable by the percentage of body areas affected. The Veteran's complaints of itching, discomfort, or other non-visible symptoms associated with his dermatitis are contemplated by this component of Diagnostic Code 7806. Accordingly, the Board concludes that the criteria for the current disability rating reasonably describe the Veteran's disability level and symptomatology, and therefore, the schedular evaluation is adequate. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence of record does not show findings that meet the criteria for a compensable rating, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994). ORDER Entitlement to an initial compensable rating for chronic dermatitis is denied. ____________________________________________ MARK GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs