Citation Nr: 1323855 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-23 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for contact vesicular dermatitis (skin disability), currently 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Paul Sorisio, Senior Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1957. This matter is before the Board of Veterans' Appeals (Board) from a November 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied a rating in excess of 10 percent for the above service-connected skin disability. In February 2009, VA received two statements one from a private physician, P.S., MD (undated) and one from a VA physician D.S., MD (December 2008). Both statements described the Veteran's skin disability. In particular, the letter from D.S. stated that the Veteran has had dermatitis in most areas of his body with outbreaks lasting months in duration and regular dermatological visits at the PVAMC. The Board finds this evidence to be new and material under 38 C.F.R. § 3.156(b) and thus it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Indeed, the RO considered this evidence in a March 2009 rating decision to which the Veteran filed a notice of disagreement. As such, the period on appeal is from the Veteran's claim received by VA in August 2008. Regarding the characterization of the issue, the RO granted service connection for contact vesicular eczematous dermatitis of fingers of both hands in a February 1973 rating decision. Over the course of the current appeal, the issue was rephrased as contact vesicular dermatitis. See, e.g., March 2013 supplemental statement of the case. Accordingly, the Board has characterized the issue as noted on the title page. In April 2013, a Travel Board hearing was held before the undersigned. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012) due to the advanced age of the Veteran. 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since 2008, the Veteran's service-connected skin disability has been manifested by dermatitis covering more than 40 percent of the entire body and/or more than 40 percent of exposed areas affected. 2. The Veteran's service-connected skin disability does not present an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate to warrant referral for extraschedular consideration. CONCLUSION OF LAW Since 2008, the criteria for entitlement to an evaluation of 60 percent for a skin disability, characterized as contact vesicular dermatitis, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Code (DC) 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The 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 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). September 2008 and October 2012 VCAA letters sent to the Veteran provided him with compliant notice. Concerning the timing of the notice that was provided, even though complete VCAA notice was not provided until after the initial denial of the issue in November 2008, the AOJ subsequently readjudicated the issue based on all the evidence in supplemental statements of the case issued in March 2013, thereby rendering harmless this prior timing error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has also been identified and obtained, to the extent possible. The evidence of record includes the reports of October 2008 and November 2012 VA examinations; a December 2008 statement from a VA physician with an April 2013 Disability Benefits Questionnaire (DBQ) clarifying this statement; a statement from a private physician; VA treatment records; the Veteran's lay statements; and the transcript of the April 2013 hearing before the undersigned. The Veteran and his representative have not identified any outstanding relevant evidence. The Veteran was provided an opportunity to set forth his contentions on the claim for an increased rating for a skin disability during the April 2013 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the April 2013 hearing the undersigned explained the issue of entitlement to an increased rating for a skin disability, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Legal Criteria and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon 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's service-connected skin disability is currently rated as 10 percent disabling throughout the entire period on appeal. Under DC 7806 for rating dermatitis or eczema, a 10 percent rating is warranted where 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. The next-higher 30 percent rating is warranted with 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. The criteria for a 60 percent rating (the maximum schedular rating) state that 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. After a review of the relevant evidence of record, the Board finds that an increased rating to 60 percent is warranted under DC 7806. In particular, D.S. (a VA physician) submitted a statement dated in December 2008 stating that the Veteran has repeated outbreaks of dermatitis that cover "most areas of the body." Although this statement does not speak to the rating criteria as outlined in DC 7806, D.S. completed a VA Form 21-0960F-2 in April 2013 to clarify the December 2008 statement. See May 2013 VA Form 21-4138 from representative (stating that the VA Form 21-0960F-2 was submitted to clarify the December 2008 statement); see also April 30, 2013 Board hearing Transcript (Tr.) at 7 (noting that the Veteran had an appointment at 1:40 pm that day and intended to get an updated DBQ from his VA physician). In pertinent part, the VA Form 21-0960F-2 completed by D.S. on April 30, 2013 indicates that the Veteran's skin diagnoses include eczema and dermatitis. It was noted that he has chronic pruritic dermatitis treated near constantly treated with topical corticosteroids (Fluocinonide). Upon physical examination, the VA physician found the Veteran had visible dermatitis covering greater than 40 percent of total body area and greater than 40 percent of exposed area. Based on this evidence, the Board finds that the Veteran's skin disability is more nearly approximated by a 60 percent rating under DC 7806. Indeed, the April 2013 DBQ from D.S. clarifying the earlier December 2008 statement clearly indicates that the Veteran's skin disability covered greater than 40 percent of total body and exposed area. It is noted that not all of the criteria for a 60 percent rating under DC 7806 need to be met in order to award this rating. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (finding that "or" in the rating criteria shows that each is an independent basis for granting that rating). This DC also states to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. The DBQ completed by D.S. and submitted in 2013, which clarified his December 2008 statement, indicates no scarring or disfigurement of the Veteran's head, face, or neck. Per the November 2012 VA examination report, the same still holds true. In light of this pertinent evidence, the Board finds that the DCs for rating based on disfigurement of the head, face, or neck are not for application. The Board further notes that no other diagnostic code for rating disabilities of the skin (Diagnostic Codes 7807-7833) can provide a rating greater than 60 percent. While DC 7817 (exfoliative dermatitis (erythroderma)) does provide for a 100 schedular rating, the evidence does not reflect that the Veteran has such. See April 2013 DBQ (leaving blank the diagnosis for exfoliative dermatitis while filling in the pertinent diagnoses). Additionally, the Board further finds that no separate ratings in addition to the current 60 percent rating are warranted. For example, the Board has considered whether a separate rating for a scar is warranted. However, the treatment reports of record have not referenced a scar that would meet a compensable rating under the appropriate DCs. Therefore, any evaluation for the Veteran's skin disability in excess of 60 percent is only for consideration on an extraschedular basis, which will be discussed below. In sum, the Board finds that a 60 percent schedular rating is warranted for the Veteran's skin disability from 2008. See 38 C.F.R. §§ 4.3, 4.7, 4.21. III. Extraschedular Consideration Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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). 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected skin disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's skin disability with the established criteria shows that the schedular rating criteria reasonably describe the Veteran's level of disability. Specifically, the April 2013 DBQ by D.S. clarifying the December 2008 statement states that the visible skin disability covers over 40 percent of total body and exposed areas. Such is directly contemplated by the 60 percent schedular rating assigned above. Thus, the Board finds that the schedular, staged evaluations are not inadequate. Additionally, even if the schedular criteria are not adequate, this case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The April 2013 DBQ by D.S. clarifying the December 2008 statement indicates that the Veteran's skin disability does not impact his ability to work. More recently, the November 2012 VA examination report states that his skin disability does not impact his ability to perform his activities of daily living such as dressing, bathing, and feeding. In light of the foregoing, the Board finds this case does not reveal an exceptional or unusual disability picture so as to warrant a referral for extraschedular consideration. ORDER From 2008, a schedular evaluation of 60 percent for a skin disability, characterized as contact vesicular dermatitis, is granted, subject to the applicable laws and regulation concerning the payment of monetary benefits. ____________________________________________ James Ridgway Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs