Citation Nr: 1322520 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 07-12 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge program. Jurisdiction of the case was subsequently transferred to the RO in Waco, Texas. In September 2009, the Veteran testified at Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been placed in the claims file. In June 2010, and again in November 2012, the Board remanded this matter for additional evidentiary development. FINDING OF FACT Since the initial grant of service connection, the Veteran's dermatitis has not affected an area of more than 40 percent of the entire body or more than 40 percent of exposed areas, nor has the condition required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during any twelve-month period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent 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 FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (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). In addition, the notice requirements 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). The Veteran's claim seeking an increased initial evaluation for dermatitis arises from his disagreement with the initial evaluation assigned to this condition following the grant of service connection. Once service connection is granted, 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). The RO has obtained the Veteran's available service treatment records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Most recently, the RO provided the Veteran with a Disability Benefits Questionnaire (DBQ) examination for skin in February 2013. The examination was performed by a physician who had reviewed the Veteran's claims file, reviewed with the Veteran his history of a skin disability, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds that this examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that this examination was inadequate. Id. An earlier skin examination were also conducted in June 2007. In June 2010 and November 2012, the Board remanded this matter to the RO directing that updated treatment records be requested; and that an updated skin examination be conducted. The RO subsequently obtained the Veteran's updated VA treatment records, dated through October 2012; and scheduled the Veteran for the February 2013 DBQ examination of the skin. Accordingly, the directives of the Board's June 2010 and November 2012 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Law and Analysis 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 evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 (see 67 Fed. Reg. 49490-99 (July 31, 2002)) and again in October 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)). The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008. Id. In this case, the Veteran filed his claim in 2005. Therefore, only the post-2002 and pre-October 2008 version of the schedular criteria is applicable. Pursuant to Diagnostic Code 7806, a 0 percent rating is warranted for dermatitis or eczema covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema covering at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs requires for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned when 20 to 40 percent of the entire body or of exposed areas is affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12 month period. The next and highest rating under this diagnostic code, a 60 percent rating, is warranted when 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). In November 2005, a VA general medical examination was conducted. The examination report noted that the Veteran's skin disorder was being treated with Cetaphil cream, Eucerin cream, and Temovate cream. Physical examination revealed brown macular flaky rash on the lower legs and back, which covered 50 percent of each lower leg and 10 percent of his back. The report noted that it also involved 20 percent of his total body area. The report concluded with a diagnosis of contact/atopic dermatitis, body. A review of the Veteran's VA treatment records revealed prescriptions for multiple topical/external skin creams. A July 2006 VA treatment report noted the Veteran's complaints of a rash on his left foot and groin. The report concluded with a diagnosis of eczema/atopic dermatitis, tinea. A March 2007 VA treatment report noted that the Veteran had multiple brown verucoid keratotic lesions on the shaft of his penis and scrotum, and a pore in his mid-back region. The report noted that the Veteran's eczema was quiet. It concluded with diagnoses of seborrhic keratosis and epidermoid cyst. A June 2007 VA treatment report noted that the Veteran underwent the excision of an epidermal inclusion cyst from his mid-back region. In June 2007, a VA examination for the skin was conducted. The VA examiner noted that the Veteran's claims file was reviewed. The examination report noted that the Veteran's skin disability began during his military service, and was initially diagnosed as eczema/lichen simplex chronicus, which was later changed to contact/atopic dermatitis. The Veteran reported that his skin rash was intermittent, and that he treated it with medications at the beginning of any reoccurrence. Physical examination revealed residual lichen simplex chronicus on the distal half of both lower legs and few patches on each foot. The report noted that signs of the Veteran scratching can be seen on those hyperchronic areas, and there were 2 or 3 already open vesicles, which were not draining, and were in the healing process. The report noted that there were a couple on the left foot and 4 on the right foot, with a small papule that had not become vesicle on both the palm of the left hand and on the right forearm. The examiner noted that the rash was just beginning, and occupied a total body surface of three percent. No scarring was indicated, and the report concluded with diagnosis of contact/atopic dermatitis in remission, with residual lichen simplex. In February 2013, a DBQ examination for skin was conducted. The DBQ physician noted that the Veteran's claims file had been reviewed. The report noted the Veteran's history of an intermittent skin rash over his legs, arms, groin, and torso which began during his deployment to Iraq. The DBQ examiner noted that the Veteran's skin condition had not caused any scarring or disfigurement to the head, neck or face. The report noted that in the past twelve months, the Veteran's skin disorder had been treated for 6 weeks or more, but not constant, with topical corticosteroids. Physical examination revealed dermatitis involving less that 5 percent of the Veteran's total body area, and less than 5 percent of his exposed body area. Specifically, the report noted one erythematous papule, 2 to 3 millimeters in diameter, with an erythematous base over the left mastoid area behind the ear with a thin lichenification area of about 1 centimeter in diameter around that papule. On his chest, there was one erythematous papule of about 4 millimeters in diameter with an erythmatous base area over the sternum, level between the nipples. On the right upper extremity, there were two erythematous papules on the right shoulder, one about 2 millimeters and the other 4 millimeters in diameter with an erythematous base areas and one erythematous papule about 4 millimeters in diameter with an erythematous base area over the right hand dorsum area near the base of the fifth finger, with scaling and shile plaque/lichenification area of about 4 centimeters and 1 centimeter next to the papule, and three cracked skin areas on the plaque. The examiner also noted that there was no pain, tenderness, associated scarring, disfigurement, or limitation of function of any body part with respect to the skin lesions found. The report listed a diagnosis of contact/atopic dermatitis, and further noted that the Veteran's skin disability does not impact his ability to work. After reviewing the evidence of record, the Board concludes that the Veteran's dermatitis is most appropriately rated as 30 percent disabling, and no more, since the initial grant of service connection effective January 23, 2006. While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected dermatitis, the evidence shows no distinct periods of time since service connection became effective, during which the Veteran's dermatitis has varied to such an extent that a rating greater or less than 30 percent would be warranted. 38 C.F.R. § 3.344 (2012). In reaching this decision, the Board finds the Veteran's dermatitis has been treated with topical corticosteroids. At no point since the initial grant of service connection has this condition required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs. The February 2013 DQB examination noted that treatment has consisted of topical corticosteroids, lasting six weeks or more, but not constant, over the past twelve months. A higher rating in excess of 40 percent is also not shown based upon the area affected by this condition. The next highest rating, a 60 percent rating, is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected. At no time has the Veteran's skin disability been shown to involve more than 40 percent of his total body area or exposed body area. Since the initial grant of service connection, the Veteran's dermatitis has been shown to affect an area ranging from less than 5 percent to a high of 20 percent of the entire body. The February 2013 DBQ examination found that it involved less than 5 percent of the Veteran's exposed body area. While prior examinations in November 2005 and June 2007 noted that this disability involved the Veteran's lower extremities, a specific percentage of the exposed body area was not given. Moreover, the involvement area which was noted referenced only the lower extremities, and did not involve the upper extremities at all. Hence, an exposed body area or total body area of greater than 40 percent has not been established at any point since the initial grant of service connection. In reaching this conclusion, the Board has considered whether a higher rating is warranted under any alternative diagnostic codes. Diagnostic Code 7805, used in rating limitation of function of the affected part due to scars, is not for application as there is no evidence of record that the Veteran has limitation of function of an affected part due to his service-connected skin disorder. See 38 C.F.R. § 4.118 (2008). Moreover, Diagnostic Code 7801, used in rating scars located on areas other than the head, face or neck, is not for application as it applies to scars that are deep or that cause limited motion. Id. Diagnostic Codes 7802 through 7804 provide for maximum ratings of 10 percent, and thus are not applicable to this claim. Id. Lastly, Diagnostic Code 7800, used in rating disfigurement of the head, face, or neck, is not applicable as these areas do not appear to be covered by the Veteran's skin condition. Id. In reaching the above conclusions, the Board has also not overlooked the Veteran's and his representative's written statements to the RO as well as the personal hearing testimony and the claimant's statements to his VA examiners. The Board finds that the Veteran is credible to report on what he sees and feels and others are credible to report on what they can see, such as the area of the claimant's body covered by the dermatitis. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. However, neither the Veteran nor his representative has provided competing measurements as to the surface area covered by the dermatitis. Therefore, the Board finds more competent and credible the findings by the examiners as outlined above than these lay statements because the lay statements did not provide sufficient detail about the severity of the Veteran's disability to allow the Board to rate it under the applicable diagnostic criteria. 38 C.F.R. § 4.118; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Evans, supra. Extraschedular Considerations Consideration has been given regarding whether the schedular evaluation assigned is inadequate, 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 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. 38 C.F.R. § 3.321(b)(1). 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. Thun, 22 Vet. App. 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. Thun, 22 Vet. App. at 116. The scheduler evaluation assigned is not inadequate. Specifically, an increased evaluation in excess of 30 percent is provided for certain manifestations of this condition, but the medical evidence reflects that those manifestations are not present in this case. Specifically, the Veteran's dermatitis is not shown to affect more than 40 percent of his entire body or exposed areas, and does not require constant or near-constant systemic therapy. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). The criteria for the assigned 30 percent rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. The evidence shows no distinct periods of time since service connection became effective January 23, 2006, during which manifestations of the Veteran's dermatitis varied to such an extent that a rating greater or less than 30 percent would be warranted. Thus, staged ratings are not in order, and a 30 percent rating for dermatitis is warranted since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). As the preponderance of the evidence is against the claim for an increased initial evaluation for dermatitis, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 56. ORDER An initial evaluation in excess of 30 percent for dermatitis is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs