Citation Nr: 1331451 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-25 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a skin disability. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from January 1986 to January 1990. The Veteran also had service in the Army National Guard with various periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In connection with this appeal, the Veteran was scheduled for a video teleconference hearing before the Board at the RO in July 2012. He failed to report for the scheduled hearing without explanation, so his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2013). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's skin disability affects less than 5 percent of his entire body and none of the exposed surfaces, and he does not require systemic therapy, such as corticosteroids or other immunosuppressive drugs, for treatment CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for a skin disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in April 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The April 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Additional letters were sent in September 2009 and December 2009. The Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and VA and private treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations in March 2010, January 2011, and October 2011. These examinations are adequate because they reflect review of the claims file and an assessment of his contentions and disability. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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. §§ 3.321(a), 4.1 (2013). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's skin disability is rated as 10 percent disabling, effective April 21, 2009 under 38 C.F.R. § 4.118, Diagnostic Code 7806, which pertains to dermatitis and eczema. Under Diagnostic Code 7806, a noncompensable rating is assigned for dermatitis or eczema where less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected, and; no more than topical therapy has been required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The maximum schedular rating of 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In March 2010, the Veteran was afforded a VA examination. At that time, the Veteran was noted to use Fluocinonide Cream, a topical corticosteroid, for treatment of his skin disability. He also reported that as a result of his skin disability, he experienced dryness, cracking skin, occasional bleeding, redness, tenderness, and occasional pus-like discharge. Upon physical examination, the Veteran was diagnosed with eczema. The eczema was noted to cover less than 5 percent of the exposed areas and greater than 5 but less than 20 percent of the total body area. In January 2011, the Veteran was afforded another VA examination. At that time, the Veteran reported that the weather had made his condition worse. The Veteran reported that he decided to take his prescribed steroid cream more than three times a day, and that he applied it to his hands after every hand wash as hand cream. The examiner informed the Veteran that he should use the cream as prescribed to avoid worsening of his symptoms. Upon physical examination, the examiner noted a mild rash that appeared as tiny papules on the Veteran's forearms, hands near thumbs, bilateral top of feet, and groin bilaterally. An examination of the groin area was deferred as the Veteran stated the area was unchanged since the last exam. The examiner made a finding of stable eczema of the forearms, hands, tops of feet, and groin. The examiner noted that the eczema affected less than 5 percent of the exposed areas and less than 5 percent of the total body area. In October 2011, the Veteran was afforded an additional VA examination. At that time, the Veteran reported a chronic rash at the base of his neck, on the right side of his back, on the right buttock, and left forearm. The Veteran reported that the symptoms were completely controlled with cream, but at times he had breakthrough itching even with cream use. Upon physical examination, there were no signs of skin disease, acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. The examiner noted that the Veteran's skin condition did not cause any scarring or disfigurement of the head, face, or neck; the Veteran had no benign or malignant skin neoplasms; and the Veteran had no systemic manifestations due to his skin disabilities. The examiner confirmed that the Veteran's treatment had consisted solely of topical corticosteroids for at least the past 12 months. The examiner noted that the Veteran did not experience any debilitating or non-debilitating episodes as a result of his skin disability. The examiner noted that while the Veteran's skin disability had been diagnosed as eczema in the past, the symptoms appeared to be more consistent with dermatitis. Therefore, the examiner made a diagnosis of dermatitis, noting that it affected none of the exposed area and less than 5 percent of the total body area. A review of the record shows that the Veteran has also received private treatment for his skin disability. A review of those records is absent any indication that the Veteran has ever been prescribed any systemic therapy or immunosuppressive drugs for treatment of his skin disability. Nor do the records indicate the percentage of the Veteran's body affected by his skin disability. While the record shows the Veteran has used various topical corticosteroids, there is no evidence of the use of intermittent systemic therapy, such as with corticosteroids (i.e., Prednisone) or other immunosuppressive drugs. There are no other applicable diagnostic codes that would provide a basis for higher rating. The Veteran's skin disability has not been shown to involve systemic treatment, scars, or psoriasis. See Diagnostic Codes 7801-7805, 7816, and 7817. The disability also has not resulted in any functional impairment, and, thus, the disability is not shown to involve any factor(s) that warrant evaluation under any other provision of VA's rating schedule. The Veteran is competent to report symptoms as to his skin disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating-eczema or dermatitis affecting at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of six weeks or more, but not constantly, during the past 12-month period, or other, demonstrated functional impairment within the meaning of VA's rating schedule-require clinical (i.e., observable) findings which have been investigated by medical professionals and not present. While the Veteran's complaints have been considered, they are not considered more persuasive on these points than the objective medical findings which, as indicated above, do not support the claim for a higher rating. The Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent. In this regard, the Board notes that there is no evidence of record indicating that the Veteran's skin disability affected 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas affected; nor is there evidence that the Veteran received systemic therapy for up to six weeks of the past 12-month period. In fact, the current reported body area affected and treatment regimen do not even meet the threshold for a 10 percent disability rating. Therefore, a disability rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for the disability and the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a disability rating in excess of 10 percent for a skin disability is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs