Citation Nr: 1331043 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 03-31 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent prior to October 11, 2007, and 60 percent thereafter, for hidradenitis suppurativa. 2. Entitlement to an increased initial evaluation in excess of 70 percent for a depressive disorder. (NOTE: The issues of entitlement to service connection for loss of use of a creative organ, glaucoma and a dental disorder are addressed in a separate decision.) REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from August 1972 to May 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In February 2011, a hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. The Veteran was afforded an opportunity to appear at a new Board hearing, and in March 2013 responded that he does not desire a new Board hearing. The instant case has been reassigned to the undersigned Acting VLJ. See 38 C.F.R. § 19.3(b). Relevant to February 2011 hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ explained the issue that is before the Board. The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Procedural History and Clarification of Issues on Appeal In an October 2011 decision, the Board awarded an initial evaluation of 70 percent for a depressive disorder and remanded the Veteran's claim for an increased evaluation for hidradenitis suppurativa. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in a September 2012 order, granted a Joint Motion for Partial Remand (Joint Motion), vacating that portion of the Board's decision which denied an evaluation in excess of 70 percent for a depressive disorder. Further, the Joint Motion found the Board failed to address a reasonably raised issue as to the effective date assigned to an increased rating for hidradenitis suppurativa. However, this issue is part and parcel of the increased evaluation issue currently on appeal that was remanded by the Board's October 2011 decision. See Hart v. Mansfield, 20 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established); see also Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation for the service-connected hidradenitis suppurativa was increased during the course of the appeal; however, the claim for a higher evaluation remains before the Board because the staged ratings assigned for the periods remain less than the maximum available benefit for the entire appeal period. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues on appeal does not include a separate question of entitlement to an earlier effective date for the ratings assigned subsequent to the initial rating action on appeal. The claims are properly noted on the title page. The issue of entitlement to an increased initial evaluation for a depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Prior to August 30, 2002, the Veteran was awarded the maximum schedular evaluation available for his skin disability under any potentially applicable diagnostic code. 2. As of August 30, 2002, the Veteran's skin disability has required near constant use of systemic therapy, including corticosteroids and antibiotic drugs; there is no involvement of the head, face or neck of such severity as to result in tissue loss or at least six characteristics of disfigurement nor are there systemic manifestations of fever, weight loss or hypoproteinemia. CONCLUSION OF LAW The criteria for an evaluation of 60 percent for hidradenitis suppurativa have been met as of August 30, 2002. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001, 2003 and 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification through numerous notice letters provided throughout the appeal period, which addressed all required elements. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Veteran has been provided a number of VA examinations to address the severity of his service-connected skin disability. These examinations are adequate for the purposes of evaluating his disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board observes the instant claim was remanded in October 2011 in order to provide the Veteran a new VA examination to address the severity of his skin disability. This examination was provided in June 2012. There has been substantial compliance with the previous remand, and adjudication of the Veteran's claim may proceed. See Stegall v. West, 11 Vet. App. 268 (1998) All relevant facts have been adequately developed to the extent possible and no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's skin disability has been assigned an evaluation of 50 percent prior to October 11, 2007, and 60 percent thereafter, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7820-7806. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). A review of the applicable rating criteria for other skin infections reveals that it is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820 (2012). In this case, the Veteran's predominant disability is not residual scarring, but rather an active skin disease. Accordingly, his disability is correctly rated under the criteria for dermatitis. VA has amended the regulations pertaining to diseases of the skin twice during the pendency of the Veteran's appeal. The first regulatory change, effective August 30, 2002, changed the diagnostic criteria utilized in Diagnostic Codes 7800-7833. See 67 Fed. Reg. 49590 (July 31, 2002). The second regulatory change, effective October 23, 2008, did not change the rating criteria for Diagnostic Code 7806 and, therefore, this second change does not impact the Veteran's current claim for benefits. Amended rating criteria, if favorable to the claim, can be applied only for periods beginning and after the effective date of the regulatory change. See VAOPGCPREC 3-2000. The Board, in giving the Veteran all due consideration, will also consider applying the "old" criteria prospectively. Prior to August 30, 2002, a maximum 50 percent evaluation was warranted for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). No higher evaluation was warranted under any diagnostic code under 38 C.F.R. § 4.118 absent a diagnosis of tuberculosis luposa (lupus vulgaris). Under the amended regulations, a maximum 60 percent evaluation is warranted with dermatitis or eczema covering 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). Analysis As noted above, the Veteran's skin disability has been assigned a 50 percent evaluation prior to October 11, 2007, and 60 percent thereafter. Initially, the Board observes that, at 50 percent, the Veteran has been assigned the maximum schedular rating possible under the "old" criteria. Therefore, a discussion of the rating criteria in effect prior to August 30, 2002, or an analysis of the evidence prior to this date, is not necessary. With respect to the period as of August 30, 2002, after consideration of all evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that an evaluation of 60 percent is warranted throughout the stage of the Veteran's appeal beginning August 30, 2002, the date the amended regulatory criteria became effective. In this regard, the Veteran's treatment records indicate a long history of treatment for his service-connected disability requiring the use of systemic antibiotic therapy. For example, upon seeking initial VA treatment in October 2002, the Veteran was placed on Dioxycillan, an oral antibiotic. In November 2002, he was placed on Keflex, and Amoxicillan in December 2002. Treatment records from August and October 2003 note the Veteran was treated with Biaxin and Keflex, both oral prescriptions used to treat bacterial infections. July 2004 VA treatment records note the Veteran was placed on Prednisone, a type of steroid. Also in July 2004, the Veteran was placed on Ceftin, an oral antibiotic. In May 2005, the Veteran was again placed on Ceftin in addition to receiving an injection of Kenalog. The Board acknowledges that the Veteran has not been placed on systemic therapy throughout the period as of August 30, 2002. However, relevant diagnostic criteria require only "near-constant" systemic therapy over a 12-month period. In light of the Veteran's medical record, particularly that described above, the Board finds that the Veteran was in receipt of "near-constant" systemic therapy during this stage of the Veteran's appeal. Therefore, under the amended regulations effective August 30, 2002, pursuant to Diagnostic Code 7806, a 60 percent evaluation is warranted throughout this stage of the Veteran's appeal. Additional Considerations The Board has considered whether a higher evaluation may be warranted at any stage of the Veteran's appeal under another potentially applicable diagnostic code. However, as noted above, prior to August 30, 2002, an evaluation greater than 50 percent was warranted only with a diagnosis of tuberculosis luposa (Diagnostic Code 7811). There is no such diagnosis of record at any time during the Veteran's appeal. Under the amended rating criteria, a higher evaluation may be warranted under Diagnostic Codes 7800 (disfigurement of the head, face or neck) and 7817 (exfoliative dermatitis (erythroderma)). However, while there is some involvement of the scalp and neck, the Veteran's condition does not result in visible or palpable tissue loss or at least six characteristics of disfigurement, nor does he suffer from generalized involvement of the skin with systemic manifestations including fever, weight loss and hypoproteinemia. As such, a higher evaluation is not warranted pursuant to any other diagnostic code under either the "old" or "new" regulations. Finally Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA 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. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 first 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 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 evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard, the Veteran's symptomatology of painful boils covering various areas of his body requiring systemic therapy is fully considered by the rating criteria discussed above. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An evaluation of 60 percent, but not greater, for hidradenitis suppurativa is granted as of August 30, 2002. REMAND In the September 2012 Joint Motion, the parties agreed that the Board did not adequately explain its conclusion that the Veteran does not meet the criteria for a 100 percent evaluation for his depressive disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013), General Rating Formula for Mental Disorders. Pursuant to the General Rating Formula, a 100 percent evaluation is warranted if the Veteran's service-connected disability results in total occupational and social impairment. If such impairment exists, a 100 percent evaluation would be warranted regardless of the symptomatology expressed. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran has not been provided a VA examination to address the severity of his service-connected depressive disorder since March 2008, a period of over five years. Given such a lengthy passage of time, the Board believes an additional examination would be helpful in determining whether the Veteran's depressive disorder, by itself, results in total occupational and social impairment. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of his depressive disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's current service-connected depressive disorder. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner is requested to specifically opine as to whether the Veteran's depressive disorder, by itself, results in total occupational and social impairment. A complete rationale should be given for all opinions and conclusions expressed. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs