Citation Nr: 1333628 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-36 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for the service-connected lichen simplex with scarring. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran has verified active duty from February 1987 to April 1989 and from September 2002 to January 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. That decision, in pertinent part, granted service connection for skin scarring and assigned an initial disability rating of 10 percent, effective from February 1, 2007, the effective date of service connection. The Veteran disagreed with the 10 percent rating assigned. In May 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the Board's Central Office in Washington, DC. A transcript of her testimony is associated with the claims file. The case was initially before the Board in December 2009 at which time the Board dismissed seven other issues on appeal, per the Veteran's request; and, remanded the issue of entitlement to an initial disability rating in excess of 10 percent for the service-connected skin scarring to the RO, via the Appeals Management Center (AMC) for additional development and adjudicative action. As the RO did not substantially comply with the remand instructions, the matter was remanded again in December 2010. Before the case was returned to the Board on appeal, the RO issued a rating decision in April 2013 increasing the initial 10 percent disability rating to 30 percent for the service-connected skin scarring, effective from February 1, 2007, the effective date of service connection. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. FINDING OF FACT The Veteran's service-connected lichen simplex covers no more than 40 percent of the entire body and no more than 5 percent of exposed areas; constant or near constant use of systemic therapy such as oral corticosteroids or other immunosuppressive drugs is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 30 percent for the service-connected skin scarring have not been met at any time since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.20 (2013); 38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2007 & 2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in June 2007. This notification complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim of service connection and the relative duties of VA and the claimant to obtain evidence. The letter also provided notice of the assignment of effective dates and initial ratings for all grants of service connection pursuant to the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is challenging the initial rating assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case, with respect to his issue, has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, the RO issued another duty-to-assist letter to the Veteran in November 2008. This letter specifically identified the applicable rating criteria for rating the Veteran's skin scarring condition. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of her skin condition, and afforded the Veteran the opportunity to give testimony before the Board. The Veteran testified at a Board Central Office hearing before the undersigned in May 2009. A transcript is of record. The case was remanded in December 2009 and December 2010 to obtain an adequate VA examination. The most recent examination was conducted in December 2012 and it provides a detailed explanation of the Veteran's symptoms and treatment such that the Board can render an informed determination. The examiner noted the history and conducted an examination, thereby providing information concerning the Veteran's skin condition. The examination report provided information based on applicability to the rating criteria and sound medical principles, and it is consistent with the Veteran's reported symptoms and history as shown throughout the period covered by this claim. The examination is therefore adequate. The agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the 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, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The submission of additional evidence that would be helpful was also suggested. BVA hearing transcript, pp. 21-23. Following the hearing, the case was remanded in order to obtain additional medical records and to afford the Veteran a VA examination. Neither the Veteran nor her 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. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Increased Initial Disability Rating Pursuant to a September 2007 rating decision, service connection for a skin scarring condition with a 10 percent disability rating was established effective from February 1, 2007. The Veteran disagreed with the initial 10 percent disability rating assigned for the service-connected skin scarring condition and this appeal ensued. In An April 2013 rating decision, issued during the course of the appeal, the RO increased the initial 10 percent rating for the service-connected skin scarring condition to 30 percent, effective from February 1, 2007, the effective date of service connection. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). At a July 2007 examination, the Veteran reported that her skin condition began during service and has continued to the current time. According to the Veteran, she has a compulsive skin picking disorder. It is caused by anxiety nerves, and once she feels bumps/scabs, she cannot stand it and will pick until she tears it off. Then she becomes angry and ashamed around others. The examiner determined that the functional impairment caused by this condition is psychological impairment. VA Physical examinations in July 2007, July 2010 and December 2012, along with photographs from May and June 2009, were all reviewed. In addition, private treatment records and memoranda documenting treatment for the skin condition were also reviewed. In July 2007 the Veteran's skin condition presented with scars/scabbing all over the body, with each measuring about 1 cm x 1 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation or abnormal texture. The skin lesion coverage relative to the whole body was 10 percent. At the time of her Board hearing in May 2009, the Veteran reported scars on her hands, upper arms, lower legs, knees, face, with a majority on the backs of her thighs and buttocks area. Some of the scars are itchy and some are painful. The Veteran described a process which the infection goes through, where the lesions on her hands would get inflamed and form a bubble like what a blister would look like. She indicated that her condition looks similar to chicken pox. The Veteran had one scar on her face at the time of the hearing, which she indicated does get reopened from time to time. The Veteran reported that her condition comes and goes, and when she has bad flare-ups and/or stress, the picking increases. The Veteran indicated that she had flare-ups every couple of months. A July 2009 memorandum indicates that the Veteran presented with a history of chronic irritation and scarring to her bilateral buttocks area (approximate body surface area of 15 percent). Clinical examination was consistent with neurodermatitis; biopsy revealed Lichen Simplex Chronicus. Initially, numerous lesions were heavily excoriated and appeared infected. Conservative topical treatment was used for the infection and inflammation, and significantly improved the area. Photographs were taken in May and June 2009, and were received at the RO in August 2009. These photographs document active infection on the buttocks, backs of the thighs, and legs. Residual scarring was noted on the arm. In July 2010, the VA examiner noted the diagnosis of Lichen Simplex Chronicus. Regarding neurodermatitis, the examiner indicated that it involved areas that were exposed to the sun, including the face; however, it did not include the hands, the neck or the head. The examiner found no ulcer formation, no exudation, and no shedding. The Veteran denied the use of UVB intensive light therapy, PUVA, or electron beam therapy. Regarding the lichen simplex chronicus diagnosis, the examiner indicated that it did not affect any areas exposed to the sun; and, she did not have any exudation, ulcer formation, itching, shedding or crusting. Treatment included hydroquinone cream and Retin A, both topical immunosupressives. At the time of the July 2010 exam, the examiner noted that the Veteran's skin condition did not reveal acne, chloracne, scarring alopecia or hyperhidrosis. The Lichen Chronicus was located on both feet and right hand and chin. The following characteristics were NOT found on examination: ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture, limitation of motion. The skin lesion coverage of the exposed area was 4 percent, and the coverage relative to the whole body was 10 percent. The skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. No burn scars were revealed. There were 8 scars of the same size located on the upper back and both arms. The scars were linear, measuring 1 cm by 0.1 x 8 scars with that measurement. (See addendum to the July 2010 VA examination report). The scar(s) were not painful on examination and there was no skin breakdown. The examiner indicated that it was superficial scarring with no underlying tissue damage. There was no inflammation, no edema, no keloid formation and the scar(s) were not disfiguring. There was no limitation of function due to the scar(s). In the addendum to the examination report, the examiner clarified that Lichen Chronicus can be a form of neurodermatitis. In an April 2011 memorandum, Dr. P, a private doctor, noted that the Veteran's disability involves itchy areas on the Veteran's skin that she scratches and/or picks at until a lesion develops. This involved the buttock, lower and upper extremities, and the face. She is left with scars, dyschromia, inflammation, and at times secondary infection. Approximately 15 to 20 percent of her body surface area was affected. Her dermatologic diagnoses were lichen simplex chronicus, prurigo nodularis both primary and scarring, and dyschromia secondary. Dr, P explained that Lichen simplex chronicus and prurigo nodularis are often a manifestation of underlying psychological stress and anxiety. Pruritis (itch) from any cause becomes worse when the individual is under stress. It is the interplay between the "psyche," stress and anxiety, the production of itch and the patient scratching that produces those diseases. According to Dr. P, dermatologic treatment includes anti-inflammatory treatment and topical steroids for inflamed lesions of lichen simplex chronicus and prurigo nodularis; topical and systemic anti-histamines for the itch; and topical bleach cream (hydroquinone) and topical retinoid for the post-inflammatory hyperpigmentation and scarring. The December 2012 VA examination report notes that the Veteran had 2 painful scars and 2 unstable scars on her head, face or neck (neither were both painful and unstable). These scars did not cause limitation of function. With regard to scars other than the head, face or neck, the examiner noted more than five scars that were unstable and painful. There were no superficial non-linear scars, and no deep non-linear scars. The examiner noted the constant/near constant use of topical corticosteroids for itching, topical cream for hyperpigmentation, and antihistamines for the itch. The examiner concluded that the Veteran's skin disorder, if analogous to dermatitis, affected 20 to 40 percent of total body area; and, less than 5 percent of exposed areas. The examiner reiterated that any functional impact with regard to employment comes from the Veteran' s anxiety and embarrassment about being around others because of the way she looks as a result of the skin problem. Photographs taken in conjunction with the examination noted a small patch of scarring on the Veteran's chin. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods during which the service-connected disability exhibits symptoms that would warrant the assignment of different disability ratings for each distinct period. Additionally, in all increased rating cases, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). The pertinent criteria for evaluating skin disabilities is found in 38 C.F.R. § 4.118 of the Rating Schedule. During the pendency of the claim, the rating criteria for evaluating skin disabilities, specifically scars, were amended effective October 23, 2008. This amendment only applies to all applications for benefits received by VA on or after October 23, 2008, unless the appellant specifically requests consideration under the new criteria. 73 Fed. Reg. 54,708 (Sept. 23, 2008) (revising 38 C.F.R. § 4.118, Diagnostic Codes 7800-05). As the Veteran filed his claim for benefits before the October 2008 amendments, the amendments would not ordinarily be applicable to the instant appeal because there is no evidence that he has specifically requested review under the new regulations. Nevertheless, in this case the RO has already considered both the old and revised criteria (see, e.g., September 2010 Supplemental Statement of the Case) and as such, the Board will likewise do so to avoid any potential prejudicial error. The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal, but rating criteria cannot be applied prior to their effective date. Kuzma v. Principi, 341 F.3d 1327 (2003). Therefore, the prior version of the applicable diagnostic codes at 38 C.F.R. § 4.118 will be applied to the period on or after the effective date of the new regulation, and the amended version will be applied as of its effective date, to determine which is more advantageous to the Veteran. Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Here, the Veteran is in receipt of a 30 percent evaluation for skin scarring based on unstable lesions that itch and create scabs on the extremities and buttocks, pursuant to 38 C.F.R. § 4.118 Diagnostic Code 7899-7806, for dermatitis and eczema. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. Under Diagnostic Code 7806, dermatitis or eczema is rated under the criteria under Diagnostic Code 7806, or alternatively it may be rated either 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. Under Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas, or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating. Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating. Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. Or, rate 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. The criteria at Diagnostic Code 7806 were not affected by the October 2008 revisions. According to the evidence of record, the Veteran's skin condition, at its worst, shows a body area of no more than 40 percent affected by the skin disability. The Veteran's medications include topical corticosteroids, not oral steroids, as well as fading creams for hyperpigmentation, and antihistamines for itching. Based on the foregoing, the currently assigned 30 percent rating represents the severity of the Veteran's disability at its worst. The Veteran's neurodermatitis/Lichen Simplex Chronicus has never, at any time covered by this appeal, been shown to affect more than 40 percent of the entire body or more than 40 percent of exposed areas. Additionally, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period has never been shown. The Veteran does use several medications constantly, or near-constantly, for her skin disability, as listed above, but none of the medication is considered systemic therapy such as corticosteroids or other immunosuppressive drug. Rather, the medication consists of topical creams, including topical corticosteroids, but not oral. Additionally, the Veteran takes an antihistamine, for itching, but this too, is not a systemic corticosteroid or immunosuppressive drug. Given these findings, the criteria are not met for the assignment of a 60 percent rating for the service-connected skin disability under Diagnostic Code 7806. The criteria under Diagnostic Code 7806 also allows the disability 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. The eight characteristics of disfigurement are: (1) Scar is 5 or more inches (13 or more centimeters) in length; (2) Scar is at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) Underlying soft tissue is missing in an area exceeding 6 square inches (39 square centimeters); (8) Skin is indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118 Diagnostic Code 7800 (in effect prior to October 23, 2008 and as of October 23, 2008). Diagnostic Code 7800, as in effect prior to October 23, 2008, provided that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent. A skin disorder 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 (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent. 38 C.F.R. § 4.118 , Diagnostic Code 7800 (in effect prior to October 23, 2008). Under the revised criteria, effective from October 23, 2008, Diagnostic Code 7800 applies to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, should be separately rated under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the ratings with the rating assigned under Diagnostic Code 7800. The characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular rating need not be caused by a single scar in order to assign that rating. 38 C.F.R. § 4.118, Diagnostic Code 7800, Notes (4), (5) (2013). Prior to the 2008 regulatory change, Diagnostic Code 7801 was applicable to scars, other than head, face, or neck, that are deep or that cause limited motion. A 10 percent rating is assigned for such scars that cover an area or areas exceeding 6 square inches (39 sq. cm.), a 20 percent rating is assigned for such scars that cover an area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is assigned for such scars that cover an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is assigned for such scars that cover an area or areas exceeding 144 square inches (929 square centimeters). Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were to be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2): A deep scar is one associated with underlying soft tissue damage. The October 2008 revisions to Diagnostic Code 7801 clarify that these scars other than the head, face or neck should include burn scars and/or scars due to other causes that are deep and nonlinear. Also, the revisions replace the word "exceeding" with "at least." In essence, the revised criteria under Diagnostic Code 7801 scars other than the head face or neck that are deep and nonlinear are assigned a 10 percent rating for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and, a 40 percent rating for an area or areas of 144 square inches (929 sq.cm.) or greater. Under the pre October 2008 version of Diagnostic Code 7802, scars, other than head, face, or neck, that were superficial or that did not cause limited motion with an area or areas of 144 square inches (929 square centimeters) or greater are assigned a 10 percent rating. The 2008 revisions to Diagnostic Code 7802 included adding burn scars, and eliminating "or that did not cause limited motion" and replacing that phrase with "and nonlinear." For both Diagnostic Codes 7801 and 7802, in addition to the above changes, the old Note (1) was replaced with Note (2) as follows: If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. Finally, under the amended versions of Diagnostic Codes 7801 and 7802, the old Note (2) became Note (1): A deep scar is one associated with underlying soft tissue damage. Under the pre-October 2008 regulations, Diagnostic Code 7803, superficial, unstable scars are assigned a 10 percent rating. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. The revised, October 2008 criteria eliminated Diagnostic Code 7803 Under the pre-2008 Diagnostic Code 7804, superficial scars that were painful on examination are assigned a 10 percent rating. Under the revised version of Diagnostic Code 7804, scar(s) that are unstable or painful are assigned a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under the pre-October 2008 Diagnostic Code 7805, other scars are rated based upon limitation of function of the affected part. Under the revised, October 2008 version of Diagnostic Code 7805, for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. Applying the evidence of record to the criteria under Diagnostic Codes 7800 through 7805 (both old and new) does not result in a higher disability rating for the Veteran's skin disability. Here, the predominant disability is neurodermatitis/Lichen Simplex Chronicus. It is this active disorder that causes the unstable scarring on 40 percent of the Veteran's body. While the Veteran did have several scars of the head, face, or neck, the predominant disability with the predominant symptoms, involves the entire body. Because the predominant disability involves the entire body and is more closely analogous to eczema rather than the actual scarring, a rating based on disfigurement of the head, face or neck is not applicable. With respect to unstable and painful scars, the examiner noted that there were more than 5 unstable scars of the body and that the claimant indicated that different ones itched at different times and were re-opened. The examiner noted that lichen planus was present on the right shoulder/upper arm, back, buttocks, and lower legs. However, in determining that 20 to 40 percent of the body was involved, the examiner considered that the disability affected the back, bilateral upper extremities, buttocks, and lower extremities, thus considering the Veteran's reports that her left upper extremity was also affected at times. Ultimately, as was discussed above, the predominant disability picture is that of a skin disability affecting the entire body, which is manifested by itching, scratching, and bleeding of different manifestations at different times that results in scarring, accordingly, the old provisions of 7803 and 7804 do not represent the predominant disability. It is also noted that there is no functional limitation of motion thus Diagnostic Code 7805 is not applicable. The only other Diagnostic Code that would potentially provide for a disability rating in excess of 30 percent is Diagnostic Code 7801, where deep and nonlinear scars not of the head, face, or neck cover an area or areas of 144 square inches or greater. Diagnostic Code 7801, however, rates scars that are deep and nonlinear. The evidence has never suggested that any of the Veteran's scars are deep. Thus, a rating under Diagnostic Code 7801 is not applicable. The Veteran asserts that each affected extremity should be evaluated separately. The Board has considered the Veteran's arguments with respect to this disability, and acknowledges that she is competent to report her symptoms and the severity thereof. The examiner in 2012 considered her reports of affected parts of the body in determining the percentage of the body involved. The Veteran's reports, which are credible, competent and probative have also been considered by the Board. However, the most probative evidence consists of that provided by the clinicians, particularly the 2012 examiner as he considered the Veteran's reports, who determined the total extent of skin involvement and such evidence demonstrates an evaluation in excess of the currently assigned 30 percent is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b); Gilbert. In view of the above, the preponderance of the evidence is against a rating in excess of 30 percent at all times relevant to the claim. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted anything other than a 30 percent schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, it is noted that the Veteran's skin disability involves a psychiatric element, and this has been separately rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9404 for neurotic excoriation with attention deficit disorder and premenstrual dysphoric disorder (also claimed as scarring residuals of obsessive compulsive disorder). IV. 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 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) (2013); see also 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. 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 level of disability and symptomatology, and is found to be inadequate, the Board must then 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 initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected skin disability that is not contemplated by the assigned rating. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's skin disability, which is manifested by itching, scratching and bleeding which results in scarring and covers up to 40 percent of the body, is specifically contemplated under the appropriate ratings criteria. Accordingly, the Veteran's disability picture has been contemplated by the rating schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In short, the evidence does not show that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). ORDER An initial disability rating in excess of 30 percent for the service-connected skin scarring disability is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs