Citation Nr: 1319686 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 05-35 530A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for eczema. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 2000 to October 2003. He also had additional periods of active duty for training (ACDUTRA) from 2003 through 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal of November 2003 and January 2004 rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, awarded noncompensable ratings for service-connected eczema, low back strain, left shin splint, residuals of a left foot fracture, left ear hearing loss, allergic rhinitis, and residuals of a right ring finger fracture, and denied service connection for musculoskeletal chest pain, bronchitis, color vision deficit, residuals of asbestos exposure and residuals of exposure to environmental hazards of the Gulf War, to include symptoms of undiagnosed illnesses. In May 2009, a travel board hearing was held before the undersigned in San Antonio, Texas. A transcript of the hearing is associated with the Veteran's claims file. In an October 2009 decision, the Board denied compensable ratings for left ear hearing loss and residuals of a right ring fracture; awarded a 10 percent rating for seasonal allergic rhinitis; denied service connection for bronchitis; and remanded the issues relating to the evaluations of eczema, low back strain, left shin splint, and residuals of a left foot fracture; and service connection for musculoskeletal chest pain, color vision deficit, and residuals of exposure to environmental hazards of the Gulf War, including symptoms of undiagnosed illness. The remand was for the purpose of obtaining the names and addresses of medical care providers who had treated the Veteran for the disabilities at issue (and the medical records from the identified providers) and to obtain several VA compensation examinations. By rating decision dated in August 2011, the RO granted an increase of the evaluation of the Veteran's back strain to 40 percent, effective March 29, 2011. The remaining issues were returned to the Board and, in October 2011, were again remanded by the Board so that it could be determined whether the Veteran had had additional periods of active duty and, if so, whether additional service treatment records (STRs) were available. The Board also ordered additional VA compensation examinations. By rating decision in December 2012, the RO granted service connection for anterior chest pain as secondary to seasonal allergic rhinitis, rated noncompensable. The Veteran has not disagreed with the initial rating. In a March 2013 decision, the Board denied service connection for color vision deficit; residuals of exposure to environmental hazards of the Gulf War; an initial rating for low back strain in excess of zero percent from November 1, 2003, until April 9, 2008; and from June 10, 2008, until March 28, 2011; a rating for low back strain in excess of 40 percent from March 29, 2011; an initial compensable rating for left shin splint; and an initial compensable rating for residuals of a left foot fracture. The March 2013 decision granted a 20 percent rating for low back strain from April 10, 2008, until June 9, 2010. The March 2013 Board decision also remanded the issue of an initial compensable rating for eczema so that the Veteran and his representative could be provided with a supplemental statement of the case. This was accomplished and the case was returned to the Board for further appellate consideration. The March 2013 rating decision effectuating the Board's March 2013 decision correctly set forth the Board's findings and conclusions regarding the evaluations for low back strain in the narrative portion thereof. The codesheet portion of the rating decision, however, incorrectly established the ratings for low back strain. This matter is brought to the attention of the RO for appropriate action. FINDING OF FACT Throughout the appeal period, the Veteran's eczema has been manifested by involvement of less than 5 percent of the entire body, with no exposed area involvement, without the need for more than topical therapy for control of his eczema. CONCLUSION OF LAW The criteria for an initial compensable rating for eczema have not been met for any portion of the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code (Code) 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2005 statement of the case (SOC) provided notice on the "downstream" element of initial rating; while December 2008 and later supplemental SOCs (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, a March 2008 letter also provided the Veteran with general disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in March 2012. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the Veteran's representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Rating Laws and Regulations Service connection for eczema was granted by the RO in a November 2003 rating decision. The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 7806 from the day after discharge from active duty in October 2003. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In this case, the Board has considered the entire period of initial rating claim from November 2003 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Veteran contends that his eczema is more disabling than currently evaluated. During the hearing before the undersigned in May 2009, the Veteran testified that he used prescription medication to treat the skin disability that mostly affected his hands and his feet. He said, while some days were worse than others, the medication he used helped to keep his skin disorder under control. An examination was conducted by VA in September 2003. At that time, the Veteran stated that he had a rash on both feet and on the heels and toes, with localized itching and flaking of the skin. He has been treated with triamcinolone cream in the past, with flare-ups approximately three times per month that usually responded to the cream for several days. On examination, his skin was of normal temperature, texture and turgor, without signs of eczema in the lower extremities. The diagnosis was eczema, in remission. On April 2008 VA examination, the Veteran reported that he had been diagnosed with eczema in 2001 and that he had itching on the bottom of his feet, but not between his toes. He used Triamcinolone cream topically, which did help, but did not prevent the eczema from returning. The disease was described as being insidious and constant, but that it had not progressed beyond the plantar surface of both feet. He used the medication twice per day, without side-effects. There were no systemic symptoms. Examination showed eczema that was confined to the plantar surface of both feet. There was a patch of excoriation measuring 2.5 cm in diameter on the bottom of the right heel area and another area measuring 1 cm in diameter on the bottom of the heel on the right side. There was no scarring or disfigurement. The diagnosis was eczema on the plantar surface of each foot covering five percent of the plantar surface of each foot. An examination was conducted by VA in March 2012. At that time, the diagnosis was eczema of the feet. The Veteran reported that he had had this since 2001, and that it also had affected his face in the past. There was no scaring, neoplasms, or systemic manifestations due to skin disease. He had not been treated with systemic corticosteroids, immunosuppressive medication, antihistamines or other oral medications, but had used other topical medications for six weeks or more during the past 12 months, but not constantly. He had not had any other treatments or procedures during the past 12 months and had not had debilitating or non-debilitating episodes such as urticaria, primary cutaneous vasculitis, erythema multiform or toxic epidermal necrolysis. His eczema covered less than five percent of total body area without any eczema on an exposed surface. The examiner indicated that the Veteran's skin disorder did not impact the ability to work. Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 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; no more than topical therapy is required during the past 12-month period, is rated noncompensably (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 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, 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 affected, or; 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. While the Veteran reported that he had had eczema of the face in the past, during the appeal period no involvement of this area was noted. Neither was scarring or disfigurement as a result of past eczema demonstrated. As such, there is no basis for evaluation as disfigurement of the head, face, or neck or scars. The Board finds that throughout the appeal period, the Veteran's eczema has been manifested by involvement of less than 5 percent of the entire body, with no exposed area involvement. He has not required the use of more than topical therapy for control of his eczema at any time during the appeal period. There is no evidence that the Veteran has needed to use intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs at any time during the appeal period. As such, there is no basis for a rating in excess of zero percent. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's eczema directly corresponds to the schedular criteria for the zero percent evaluation for the disorder. For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's eczema, and no referral for an extraschedular rating is required. Finally, the evidence does not suggest that the Veteran is unemployable by reason of his service-connected disabilities. Consequently, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial compensable rating for eczema is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs