Citation Nr: 1326722 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 08-03 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for chronic bronchitis. 2. Entitlement to a disability rating in excess of 40 percent for lumbar spine disability, including herniated nucleus pulposus, L4-5 with sciatica affecting the right hip and leg. 3. Entitlement to a disability rating in excess of 20 percent for peripheral vascular disease of the right lower extremity. 4. Entitlement to an initial disability rating in excess of 10 percent for dermatitis of the bilateral upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from November 1958 until November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a May 2006 rating decision, the RO granted a 20 percent disability rating for peripheral vascular disease, right lower extremity and service connection for dermatitis, upper extremities, with a 10 percent disability rating, effective February 18, 2006. The RO also denied service connection for chronic bronchitis. In a June 2007 rating decision, the RO denied a disability rating in excess of 40 percent for the herniated nucleus pulposus, L4-5 with sciatica affecting right hip and leg. The Board notes that the May 2006 rating decision granted an effective date of February 18, 2006 (the date of the VA examination) for service connection for dermatitis. As the Veteran did not appeal the effective date of that decision, consideration of a staged rating prior to that date is not necessary for the dermatitis claim. The Board notes that the Veteran was already in receipt of individual unemployability due to service-connected disabilities (TDIU) at the time that decision. This matter was previously before the Board in September 2011 and remanded for additional development. In a January 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent disability rating for neuropathy of the right lower extremity (which the RO had previously granted a separate rating for in a December 2002 rating decision). The Veteran has not filed a notice of disagreement with the January 2013 grant of an increased rating. As such, that claim is not before the Board. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that additional VA medical records are associated with that record. The AOJ, however, considered those records in the January 2013 supplemental statement of the case. The issue of entitlement to aid and attendance has been raised by the record, in a January 2012 evidence submission, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for bronchitis and increased ratings for the lumbar spine disability and peripheral vascular disease of the right lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's dermatitis does not cover 20 percent or more of the entire body or of the exposed areas affected, and is not treated by systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for dermatitis of the bilateral upper extremities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.102, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). The dermatitis appeal arises from disagreement with the initial evaluation following the grant of service connection for dermatitis of the bilateral upper extremities. Courts have held that 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 VA medical records and private medical records. Additionally, consistent with the September 2011 Board remand, the AMC has obtained and associated Social Security Administration (SSA) records with the claims file. Furthermore, the AMC provided VA medical examinations, most recently in May 2012. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, at the time of an initial rating, as is the situation in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. VA received the Veteran's claim in May 2005. The RO granted service connection and a 10 percent disability rating, under Diagnostic Code 7806, from the date of the February 2006 VA examination (February 18, 2006). The Board notes that the diagnostic codes for the skin were revised, effective October 23, 2008, and that those regulatory changes will apply to all applications for benefits received by VA on or after October 23, 2008. It specified that a veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. See 73 Fed. Reg. 54708 (Sept. 23, 2008). Thus, the most recent October 23, 2008 criteria would only apply to the claims received on and after the effective date, and the Veteran has to request review under the new regulations if he was rated under the prior regulations. As such, the October 23, 2008 criteria do not apply to the present claim. Under Diagnostic Code 7806 for dermatitis or eczema, a noncompensable rating is warranted if less than 5 percent of the entire body or less than 5 percent of exposed areas are affected; and no more than topical therapy was required in the past 12-month period. A 10 percent rating is warranted if the condition covers 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 is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if the disease covers 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 is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires 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 Codes 7806. In addition to rating the skin disability under Diagnostic Code 7806, skin disorders can also be rated under Diagnostic Codes 7800 (for rating scars) or 7803-7805 (for rating disfigurement of the head, face, or neck). Here, however, as the Veteran's service-connected eczema is not present on the head, face, or neck and the examiners did not indicate that he has scars due to the disability. Accordingly, ratings under these diagnostic codes are not applicable. III. Dermatitis of the Bilateral Upper Extremities In a September 2005 statement, the Veteran complained of rashes on his hands and arms, which would vary in severity, but never go away. He complained of itching and burning. In February 2006, the Veteran underwent a VA examination. The Veteran reported that he has had skin problems of that rash for 30 years and had been treated with triamcinolone. The February 2006 VA examiner found dermatitis on the bilateral arms and fore-arms. That dermatitis had characteristics of exfoliation and hyperpigmentation of less than six square inches. The examiner found that the arms and forearms did not have ulceration, crusting, tissue loss, induration, inflexibility, hypopigmentation, abnormal texture or limitation of motion. The examiner found the skin lesion to be of zero percent of the exposed area and 18 percent relative to the whole body. The examiner found that the skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. In May 2012, the Veteran underwent another skin diseases VA examination. The examiner found the Veteran to have eczematous dermatitis. The Veteran reported that the disorder started in 1979 and that he had a rash of arms and hands, as well as, redness, itchiness, burning sensation and occasional scales. The Veteran also reported that he treated it with hydrocortisone cream twice a day, as needed for irritation. The May 2012 VA examiner found that the Veteran was treated with topical corticosteroids on a constant/near constant basis. However, the VA examiner did not find that the Veteran used systemic therapy such as systemic corticosteroids or other immunosuppressive medications. Additionally, the May 2012 VA examiner found that the dermatitis covered five to less than 20 percent of the Veteran's total body area and exposed body area. Furthermore, the examiner noted erythematous macular areas with discoloration. However, the examiner found that the skin condition did not impact the Veteran's ability to work. Under Diagnostic Code 7806 for dermatitis or eczema, a 30 percent disability rating (the next higher disability rating available) is warranted if the disease covers 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 is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The next higher 60 percent rating requires 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 Codes 7806. None of the medical evidence of record indicates that the Veteran's dermatitis covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Both VA examiners found that it covered less than 20 percent of the Veteran's entire body or exposed areas. Furthermore, the medical evidence documents treatment that is not consistent with a higher rating. The May 2012 VA examiner specifically found that the Veteran did not undergo treatment for systemic therapy. As such, no medical evidence is of record supportive of a disability rating in excess of 10 percent for dermatitis. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant'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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disability of dermatitis with the respective established criteria found in the rating schedule. In this regard, the Board finds that the Veteran's symptomatology associated with the disability is fully addressed by the rating criteria under which such disability is rated. Specifically, the rating criterion addresses the Veteran's complaints regarding location, effects and treatment. There are no additional symptoms of the service-connected disability that is not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the disability. As such, the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to an initial disability rating is excess of 10 percent for dermatitis is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. I. Service Connection for Bronchitis The Veteran contends that he due to service. In his November 2011 statement, the Veteran specifically indicated that he believes that his bronchitis developed due to his Agent Orange exposure. The Board notes that VA has already conceded Agent Orange exposure, as documented in a December 2002 rating decision wherein the RO granted service connection for diabetes mellitus due to Agent Orange exposure. The Board also notes that additional, relevant private medical records have been associated with the claims file since the May 2012 VA examination. Additionally, the May 2012 VA examiner for respiratory conditions did not consider the Veteran's contentions regarding Agent Orange exposure. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand is necessary in order to obtain an addendum opinion that addresses the Veteran's contention that Agent Orange exposure caused his bronchitis and consider all the evidence of record. II. Increased Rating for the Lumbar Spine Disability The Veteran contends that his service-connected lumbar spine disability is more severe than indicated by his current 40 percent disability rating. The May 2012 VA back conditions examiner noted that the Veteran declined range of motion examination due to immobility and oxygen dependence, as well as, back pain. Although range of motion testing is not possible, the Board notes that a disability rating in excess of 40 percent can be established based on a determination of whether the Veteran has unfavorable ankylosis of the spine. The VA examiner did not address the question of whether the Veteran has ankylosis of the spine. A remand is thus necessary in order to obtain addendum opinion that addresses whether there is ankylosis of the spine, and if so, the type of ankylosis and to what extent it is present. Barr, 21 Vet. App. at 311. III. Increased Rating for Peripheral Vascular Disease of the Right Lower Extremity The Veteran further contends that his peripheral vascular disease of the right lower extremity is more severe than his current 20 percent disability rating, under Diagnostic Code 7114. The May 2012 VA artery and vein conditions examiner did not perform ankle/brachial index testing during the examination. Instead, the examiner noted that such testing had been performed in January 2011, by the Atlanta Vascular Specialist, and provided the findings from that testing. Unfortunately, the cited January 2011 record by the Atlanta Vascular Specialist is not associated with the claims file. On remand, the AOJ should obtain that record (and any other unassociated non-VA treatment records) and associate them with the claims file. 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Additionally, the Board notes that the Atlanta Vascular Specialist record relied on by the May 2012 VA examiner was from January 2011, over two years ago. As such, the Board finds that the Veteran should be given an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). IV. Other Development VA's duty to assist also includes obtaining relevant medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Prior to any examination, an attempt should be made to obtain copies of any outstanding records of pertinent medical treatment. The last VA medical records associated with the claims file, from the Atlanta, Georgia VA medical center, were from July 2012. Finally, VA has not provided proper notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) in regards to his claim for an increased rating for peripheral vascular disease of the right lower extremity. Notice compliant with VCAA standards must thus be provided to the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Notice compliant with VCAA standards must be provided to the Veteran for his claim for an increased rating for peripheral vascular disease of the right lower extremity 2. The AOJ should obtain any unassociated VA treatment records from the Atlanta, Georgia VA medical center, including from July 2012 to the present, and associate those records with the claims file. 3. The Veteran should be given an opportunity to identify any non-VA healthcare provider that treated him for a claimed disorder. The AOJ should specifically note the January 2011 Atlanta Vascular Specialist record (referenced by the May 2012 artery and vein conditions VA examiner) and any other Atlanta Vascular Specialist records. If the Veteran provides the appropriate authorizations to obtain any records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After the above medical records have been associated with the claims file, the AOJ should arrange for the May 2012 respiratory conditions VA examiner to provide an addendum opinion. If that VA examiner is not available, the AOJ should arrange for another appropriate VA examiner to provide an addendum opinion. The claims folder and a copy of this Remand should be made available to and be reviewed by the examiner. If the VA examiner determines that an additional examination is necessary, that examination should be performed prior to the examiner's opinion formation. All indicated studies should be performed, and all findings should be reported in detail. The examiner should include a complete discussion of the medical principals used in forming his/her opinion. a) Does the Veteran currently have bronchitis? b) If the Veteran currently has bronchitis, is it at least as likely as not (50% probability or greater) that it began in or was caused by the Veteran's service? The VA examiner should specifically consider the Veteran's contention that his bronchitis is due to his conceded Agent Orange exposure in Vietnam. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete explanation must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 5. After the requested medical records have been associated with the claims file, the AOJ shall have the May 2012 back conditions VA examiner provide an addendum opinion. If that VA examiner is not available, the AOJ should arrange for another appropriate VA examiner to provide an addendum opinion. The claims folder and a copy of this Remand should be made available to and be reviewed by the examiner. If the VA examiner determines that an additional examination is necessary, that examination should be performed prior to the examiner's opinion formation. All indicated studies should be performed, and all findings should be reported in detail. The VA examiner should explain (i) whether or not the Veteran has ankylosis of the spine, and if so, (ii) the type of ankylosis and (iii) the extent of the ankylosis of the spine. A complete explanation must be given for all opinions and conclusions expressed. 6. After the requested medical records have been associated with the claims file, the AOJ shall schedule a VA examination to determine the current extent and severity of the service-connected peripheral vascular disease of the right lower extremity. The claims folder and a copy of this Remand must be provided to and be reviewed by the examiner in conjunction with the requested VA examination. All indicated tests and studies (including determining an ankle/brachial index (ABI) though vascular testing in a laboratory) should be performed, and all findings should be set forth in detail. The examiner's findings should include all of the present symptoms and manifestations attributable to the Veteran's service-connected disability. The examiner's findings should also identify: a) whether the Veteran has claudication on walking on a level grade at 2 miles per hour for over 25 yards or under 25 yards, and note the number of yards, b) whether the Veteran has trophic changes, such as thin skin, absence of hair, or dystrophic nails of the right lower extremity, c) whether the Veteran has persistent coldness of the right lower extremity, d) whether the Veteran has ischemic limb pain at rest of the right lower extremity, e) whether the Veteran has deep ischemic ulcers of the right lower extremity, and f) what the Veteran's ankle/brachial index is for the right extremity? A complete explanation must be given for all opinions and conclusions expressed. 7. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If any benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs