Citation Nr: 1324196 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-27 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent for eczema of the neck, left forearm, and right shin. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a letter dated approximately one week later in October 2006, the RO in Indianapolis, Indiana, notified the Veteran of that decision. The jurisdiction of this appeal remains with the Indianapolis RO as the Veteran lives within the state of Indiana. In March 2011, the Board remanded the claims of entitlement to service connection for onychomycosis of the toenails and for an increased rating for service-connected eczema for additional development, to include a contemporaneous VA skin examination. Following that exam, in a March 2012 rating determination, service connection was granted for onychomycosis of the toenails and a noncompensable rating was awarded, effective May 5, 2006. In a March 2012 supplemental statement of the case (SSOC), the 10 percent rating for eczema was confirmed and continued. In a VA FORM 646 dated in March 2012, the Veteran expressed his continued disagreement with the 10 percent rating assigned his eczema. He did not, at that time, or any other time, disagree with the assigned disability rating or the effective date for his onychomycosis of the toenails. This matter has therefore been resolved and is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that when an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The Veteran's eczema of the neck, left forearm, and right shin is manifested by involvement of at least 5 percent, but less than 20 percent, of the entire body, and it has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for eczema of the neck, left forearm, and right shin are not met or approximated. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14 (2012), 4.118, Diagnostic Codes (DCs) 7800-7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in June 2006 and March 2011 and March 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the June 2006 and March 2012 letters mentioned above. The Board remanded this claim in March 2011. Specifically, in part, the Board requested that a contemporaneous examination be conducted to address the severity of the service-connected eczema of the neck, left forearm, and right shin. In reviewing the Veteran's claims file (and as discussed more fully below), such examination was conducted and the exam report dated in April 2011 is of record. The Board thus finds substantial compliance with its March 2011 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. at 268, 271 (1998). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012) ; 38 C.F.R. Part 4 (2012). Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Eczema of the Neck, Left Forearm, and Right Shin The Veteran contends that he is entitled to a disability evaluation in excess of 10 percent for his service-connected eczema. For historical purposes, service connection for skin rash of the neck and hairline was granted in a January 1973 rating decision. A 10 percent disability evaluation was assigned under DC 7806, effective as of October 31, 1972. In a January 1985 rating decision, the 10 percent rating was confirmed and continued. In May 2006, VA received a claim from the Veteran seeking a higher disability evaluation. This claim was denied by the RO in an October 2006 rating decision. At that time, the service-connected disability was reclassified as on the title page of this decision to not only include the neck/hairline, but also the left forearm and right shin. A timely notice of disagreement was received from the Veteran in February 2007. The 10 percent disability evaluation was subsequently continued in an August 2007 statement of the case and a December 2008 SSOC. As noted earlier, the claim was remanded for additional VA examination in March 2011. Upon filing his claim for an increased disability evaluation in May 2006, the Veteran was afforded a VA examination of the skin in September 2006. He reported that his rash of the neck and hairline had spread to the left arm and right shin. This rash had been present since 1968 and was intermittent. He used over-the-counter preparations for the skin rash. Mild patches of dryness were noted at the neck, left forearm, and right shin. There was a fine scale and mild erythema. The examiner provided a diagnosis of eczema affecting 20 percent of your neck, 5 percent of your left forearm, and 2.3 percent of exposed body, and 4 percent of total body involved. Subsequently dated VA treatment records primarily reflect treatment for other conditions. However, as requested by the Board in the March 2011 remand decision, additional VA examination of the skin was conducted in April 2011. The Veteran reported a scaly pruritic rash that was progressive and primarily on his neck, left forearm, and right shin. There were no systemic symptoms. He used topical cream (corticosteroid) for treatment and indicated that the need for application of such was constant. The examiner noted that there was less than 5 percent of exposed areas of the head, face, neck, and hands affected. There was greater than 5 percent but less than 20 percent of the total body area affected. Other significant skin findings were dry scaly patches on the bilateral ears, elbows, right chest, and bilateral shins. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his service-connected atopic eczema. As already noted, the Veteran's disability has been rated under Diagnostic Code 7806. 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. DC 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. 38 C.F.R. § 4.118 (2012). According to the April 2011 VA examination report, the Veteran's eczema affected at least 5 percent of the total body but less than 20 percent. Less than 5 percent of exposed areas were affected. As such, the Veteran's disability has not met the criteria necessary for a higher disability evaluation of 30 percent - eczema affecting between 20 and 40 percent of the entire body or the exposed areas. See id. The Board notes that the Veteran was noted to be using corticosteroids for more than 6 weeks in the past 12 months during his most recent VA examination. However, DC 7806 requires the use of "systemic" corticosteroids for 6 weeks or more to warrant a higher disability evaluation of 30 percent. In the current case, the Veteran has been using topical over-the-counter corticosteroids. As such, a higher disability evaluation is not warranted under DC 7806. Again, dermatitis or eczema is to be rated under either the criteria under DC 7806 or to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. However, the treatment records here, to include VA exam reports in 2006 and 2011 do not reflect any scarring. Moreover, these records fail to note any scarring or disfigurement, aside from dry patches. The Board notes that revised provisions for evaluating scars were enacted effective October 23, 2008. However, the new regulation provides that the revised provisions are applicable only to claims received on or after October 23, 2008. The Veteran has not requested consideration under the revised provisions. Accordingly, the revisions do not apply in the present case. See 73 Fed. Reg. 54708 (Sept. 23, 2008). Under the rating criteria as they existed at the time of receipt of the Veteran's claim, a higher disability evaluation (30 percent) was warranted for disfigurement of the head, face, or neck, with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800 (2007). The 8 characteristics of disfigurement are: (1) A scar of 5 or more inches (13 or more cm) in length; (2) A scar at least one-quarter inch (0.6 cm) wide at the widest part; (3) Surface contour of the scar elevated or depressed on palpation; (4) A scar that is adherent to underlying tissue; (5) The skin is hypo-or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm); (6) The skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) The underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); (8) The skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. In the present case, the record reflects, at most, one characteristic of disfigurement. Namely, the report of dry, scaly rash on the nape of the neck. A higher disability evaluation of 30 percent is not warranted unless there is evidence of two or three characteristics of disfigurement. As such, a higher disability evaluation is not warranted based on disfigurement of the head, face or neck. Finally, the Board has considered whether a higher disability rating may be warranted under DC 7801-05 for scarring of areas other than the head, face or neck. However, in the present case, there is no evidence of scarring that would warrant a higher disability evaluation of 30 percent or greater under these codes. The only DC permitting a higher disability evaluation based on scarring other than the head, face and neck is DC 7801. Under this code, a higher disability evaluation is warranted when there is deep scarring that causes limitation of motion in an area or areas exceeding 12 square inches (77 sq. cm.) or more. 38 C.F.R. § 4.118. In the present case, there is no evidence of scarring totalling 77 sq. cm or more, or, of scarring that is deep or causes limitation of motion. As such, a higher disability evaluation is not warranted for scarring of areas other than the head, face or neck. The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation. While the Board is sympathetic to the Veteran's situation, the rating criteria do not take into consideration the length of time for which a disability has existed when assigning the proper disability evaluation. As such, this argument fails to demonstrate entitlement to a higher disability evaluation. The Veteran has submitted no other evidence to demonstrate that he meets the schedular criteria for a higher disability evaluation. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b) (2012). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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. The Veteran's symptoms associated with his service-connected skin disorder include intermittent rashes with itching and scaliness. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.118, DC 7806. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's disability has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation. According to the April 2011 VA examiner, this condition did not significantly impact the Veteran's ability to work or to perform his usual activities of daily living. Therefore, referral for consideration of an extraschedular rating is not warranted. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran's symptomatology has not warranted a disability evaluation in excess of 10 percent at any time during the pendency of this claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent for eczema of the neck, left forearm, and right shin must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for eczema of the neck, left forearm, and right shin is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs