Citation Nr: 1316488 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 11-09 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial compensable rating for seborrheic dermatitis of the face, brow, and chin. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to January 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in this claims file. In May 2012, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Prior to June 8, 2012, the competent and probative evidence of record demonstrates that the Veteran's service-connected seborrheic dermatitis of the face, brow, and chin affects less than 5 percent of the total body area and less than 5 percent of the exposed body area without the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 3. As of June 8, 2012, the competent and probative evidence of record demonstrates that the Veteran's service-connected seborrheic dermatitis of the face, brow, and chin affects 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; requires 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. CONCLUSIONS OF LAW 1. Prior to June 8, 2012, the criteria for an initial compensable rating for seborrheic dermatitis of the face, brow, and chin have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Code 7806 (2012). 2. As of June 8, 2012, the criteria for an initial 10 percent rating for seborrheic dermatitis of the face, brow, and chin have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The claims arise from the Veteran's disagreement with the initial evaluation following the grant of service connection for the claimed disability. In this case, the Veteran was provided a VCAA letter in January 2009 which informed him of the evidence necessary to substantiate a claim for service connection. Courts have held that once service connection is granted and 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). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran was also provided a VA examination in connection with his claim. The VA examiner reviewed the Veteran's claims file, noted his medical history, and recorded pertinent examination findings. All obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file. The Veteran has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Veteran testified at an August 2011 Board hearing before the undersigned. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Importantly, the Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. The outstanding issues with respect to the Veteran's claims are whether the Veteran's service-connected seborrheic dermatitis of the face, brow, and chin has worsened in severity and whether the Veteran's acquired psychiatric disorder is related to his military service. Any deficiencies in the August 2011 Board hearing under section 3.103(c)(2) were not prejudicial. Specifically, VA has otherwise developed these claims, including making appropriate efforts to obtain records on the Veteran's behalf, and providing VA examinations which directly address the outstanding issue of whether the Veteran's service-connected disability has worsened in severity and whether the claimed disability is related to active service, as discussed above with regard to VA's duty to assist under the VCAA. Moreover, the Veteran did not raise any new issues pertaining to his claims at the hearing, and there is no indication that he has any outstanding evidence to submit. See id. at 499. Thus, given the development undertaken by VA with respect to these claims, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) (West Supp. 2012); 38 C.F.R. § 3.159(d) (2012); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is contesting the disability evaluation that was assigned following the grant of service connection for his disability. This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-27. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. Id. Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Competency of evidence differs from weight and credibility. The competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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). At the August 2011 Board hearing, the Veteran testified that his service-connected skin disability was worse than the current evaluation contemplates. He explained that his forehead breaks out into bumps, which turn into scabs and peel. He stated that his whole entire face feels inflamed. See the August 2011 Board hearing transcript. The Veteran asserts that a compensable evaluation is warranted for his service-connected seborrheic dermatitis of the face, brow, and chin. The Veteran's service-connected sebhorrehic dermatitis is rated as 0 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). As of October 23, 2008, revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, because the Veteran's claim was received after that date (November 2008), these revisions do apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). However, in this case, the amended Diagnostic Codes are not for application as the Veteran's disability does not include scars and his disability has been rated as eczema which is specifically addressed under Diagnostic Code 7806 which was not affected by the 2008 changes. Diagnostic Code 7806 provides that 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 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or, systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. In November 2009, the Veteran was afforded a VA examination for his service-connected skin disability. He admitted to having a rash mostly on his forehead and during humidity. He reported to the examiner that the rash causes peeling, and it is located on the forehead, malar regions, and the chin. Upon physical examination testing, the VA examiner noted some tiny papules, approximately a dozen total, along the hairline of the brow in the malar region in the chin. There was no acne or chloral acne. The VA examiner estimated that the facial area involved was four percent and the exposed area was four percent. The VA examiner diagnosed the Veteran with seborrheic dermatitis of the face, brow, and chin. In June 2012, the Veteran underwent a second VA examination for his service-connected disability. The Veteran reported an itchy rash first occurring in service and continuing since discharge from service. He admitted to using moisturizer and not seeing a physician for his skin disorder. He further indicated that his skin disorder becomes worse in the summer months. The Veteran denied having a skin disorder causing scarring or disfigurement, the presence of any benign or malignant skin neoplasms, or systemic manifestations due to any skin diseases. The Veteran also informed the VA examiner that he has not been treated with oral or topical medications or undergone any treatments or procedures for any skin disorder in the past 12 months. There have also been no debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. Upon physical examination testing, the VA examiner determined that the Veteran's skin disorder affected less than 5 percent of the total body area and 5 percent to less than 20 percent of the exposed area. He was diagnosed with seborrheic dermatitis. Diagnostic Code 7806 provides that specific percentages of skin must be adversely affected by a veteran's claimed skin disability in order to qualify for a disability rating. In this case, the medical evidence of record indicates that the Veteran's service-connected dermatitis disability covers at least 5 percent of exposed areas of the Veteran's body but not as much as 20 percent has been affected by the skin disability at the June 2012 VA examination. As such, the Board finds that the Veteran meets the criteria for an initial rating of 10 percent disabling, as of June 8, 2012. However, a compensable rating is not warranted prior to June 8, 2012, as the November 2009 VA examiner estimated that the facial area involved was four percent and the exposed area was four percent. There was also no evidence of 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. As such, a compensable rating prior to June 8, 2012, is not warranted. The Board has considered the Veteran's skin disability under all other potentially appropriate diagnostic codes. However, his skin disability has never been shown to produce scarring; therefore, 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 are not for application. The Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40 or 4.45 is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the Veteran's joints. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where the diagnostic code under which the Veteran is rated, in this case Diagnostic Codes 7806, is not predicated on loss of range of motion, §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that the Veteran is competent to observe pain and other symptoms, and his statements and testimony are credible. The Veteran's assertions as to a higher evaluation is outweighed by the objective medical evidence discussed above which does not show that he satisfies the criteria for a compensable rating prior to June 8, 2012 for his service-connected skin disability. The Veteran is not competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's skin disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which these disabilities are evaluated. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation in this case is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. The Board concludes that the preponderance of the evidence is against an initial compensable rating for seborrheic dermatitis of the face, brow, and chin, prior to June 8, 2012. However, the Board finds that the evidence supports a finding that the Veteran's service-connected seborrheic dermatitis of the face, brow, and chin warrants a 10 percent rating, as of June 8 and no higher, and all reasonable doubt has been resolved in the Veteran's favor. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an initial compensable rating for seborrheic dermatitis of the face, brow, and chin, prior to June 8, 2012, is denied. Entitlement to an initial 10 percent evaluation for seborrheic dermatitis of the face, brow, and chin, as of June 8, 2012, is granted subject to the laws and regulations pertaining to the payment of monetary benefits. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board finds that this appeal must be remanded to obtain an adequate examination that complies with the directives of the May 2012 remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, where VA provides the Veteran an examination in a service connection claim the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination and medical opinion addresses the appropriate theories of entitlement and provides a supporting rationale for any medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). When the matter was before the Board in May 2012, a remand was ordered. The Board noted that a VA medical opinion must be obtained to reconcile the Veteran's apparent lack of symptomatology during the VA examinations, in which the examiners rejected a PTSD diagnosis, and the symptoms described in the treatment notes. The Board further added that the examiner must make a determination as to whether any current diagnosis, or past, resolved complaints since the claim was being submitted, including PTSD and a depressive disorder, are related to the Veteran's service. As such, in the action paragraphs, the Board requested that the AMC afford the Veteran a VA examination for the claims on appeal, which included the claim for PTSD. The Board also requested that the claims file be returned to the December 2010 VA examiner for a medical opinion, and if the examiner was unavailable, to schedule the Veteran for an additional VA psychiatric examination. See the May 2012 Board remand. In May 2012, the December 2010 VA examiner conducted a "chart review" and provided an opinion regarding the Veteran's acquired psychiatric disorder. In the March 2013 Informal Brief Presentation, the Veteran's representative noted that the May 2012 remand was not complied with as the AMC did not provide the Veteran with a VA mental examination. The Veteran's representative referenced a statement in the remand indicating that "a remand is necessary to provide the Veteran with adequate notification, a VA examination to determine his diagnoses and their etiologies, and for consideration of a claim for service connection for all diagnoses he receives for psychiatric disorders." See Board remand, page 4. As such, because of the aforementioned procedural deficiencies, namely the failure of the AMC to provide a psychiatric examination for the Veteran's claim on appeal, the Board's remand instructions were not complied with, and another remand is needed in order to ensure compliance. If any action required by a remand is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. While the Board regrets the delay, another remand is required. See Stegall v. West, 11 Vet. App.-268 (1998). To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to determine the nature and etiology of any psychiatric disorders that may be present. Any and all studies, test, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records. a. The examiner should identify all psychiatric disorders present. b. Thereafter, the examiner should provide an opinion as to whether any psychiatric disorder it is at least as likely as not related to service or any event of service. A rationale for any opinion reached must be provided. If the examiner finds it impossible to provide any requested opinion without resort to pure speculation, he or she should so indicate and discuss why an opinion cannot be provided. 2. Thereafter, readjudicate the claim on appeal. If the benefit remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and the case should be returned to the Board. 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). ______________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs