Citation Nr: 1333725 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-11 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for photosensitive non-specific dermatitis. 2. Entitlement to a compensable initial rating for seasonal rhinitis. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from March 2001 to February 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In pertinent part, the September 2008 rating decision granted entitlement to service connection for photosensitive non-specific dermatitis and seasonal rhinitis and assigned noncompensable ratings for each. In a May 2013 rating decision, the RO increased the rating for photosensitive non-specific dermatitis to 30 percent, effective February 6, 2008, the date after the Veteran's separation from service. As the increased rating does not represent the maximum rating available for the condition, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's photosensitive non-specific dermatitis is manifested by a red, itchy rash that covers no more than 20 percent of the Veteran's total body and 40 percent of his exposed body and has been treated with no more than antihistamines and topical therapy. 2. The Veteran's allergic or seasonal rhinitis disability is manifested by itchy, watery eyes, sneezing, and an itchy throat, but not by greater than 50 percent blockage of the nasal passages on both sides or complete obstruction on one side or objective evidence of polyps. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent for photosensitive non-specific dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.118, DC 7806 (2013) 2. The criteria for a compensable disability rating for allergic or seasonal rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.97, DC 6522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this case, the claims are "downstream" issues in that they arose from initial grants of service connection. Prior to the rating decision granting service connection, the RO issued a notice letter in May 2008 that fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, 16 Vet. App. at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, 18 Vet. App. at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap, 21 Vet. App. at 118. In this case, the Veteran has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a higher rating. Indeed, the Veteran has specifically argued that he is entitled to a 60 percent rating for his dermatitis and a 10 percent rating for his rhinitis and specifically discussed the rating criteria necessary for such ratings. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in July 2008 and January 2013. The Board finds the examination reports to be thorough and supported by the other evidence of record. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examinations also discussed the impact of the disability on the Veteran's daily living. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Dermatitis The Veteran's service-connected photosensitive non-specific dermatitis is rated under the criteria contained in 38 C.F.R. § 4.118, DC 7806, for dermatitis. The Veteran contends that his symptoms are worse than the current 30 percent disability rating assigned under DC 7806. Specifically, the Veteran asserts that since receiving the smallpox vaccine in service he has experienced regular skin rashes over much of his body. Indeed, the Veteran contends that his skin rashes cover more than 40 percent of his total body at certain times. The Veteran asserts that the skin problems are caused or exacerbated by exposure to the sun and the symptoms generally are worse in the summer months. DC 7806 sets forth the criteria for dermatitis and eczema and provides that a noncompensable disability rating is assigned when there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period. Assignment of a 10 percent rating is warranted when there is 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. Assignment of 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 is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Assignment of a 60 percent evaluation 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 is required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2013). The Veteran's service treatment records indicate that he received the smallpox vaccine in February 2003. Several days after his smallpox vaccination, the Veteran reported a two day history of rash that was clearly limited to areas of sun exposed skin. In May 2005, the Veteran reported a one week history of a rash on his bilateral forearms. He had tried hydrocortisone, without success. He was prescribed Prednisone. A June 2005 service treatment record included findings of a rash and suspicious lesions. A July 2006 service treatment record noted no skin problems and specifically found the skin to be normal and without a rash. Shortly after separating from service, the Veteran underwent a general VA medical examination in July 2008. At that time, the Veteran reported a recurrent pruritic skin rash since February or March 2003. The problem occurred only on skin that was exposed to the sun. The rash could occur on any sun-exposed area of skin, fully resolve in that area, and subsequently occur on some area of skin. The Veteran typically had the rash somewhere most of the time. The Veteran described the problem as red blotches that usually itched. The Veteran denied any treatment for the skin problems in the previous year. On examination, there was a patch of flat erytematous macules and papules on the left upper arm, without scaling or excoriations. The problem involved less than 2 percent of the total body and no exposed skin. The assessment was photosensitive non-specific dermatitis. VA treatment records do not include treatment for or diagnoses of skin problems over the next several years. That said, in support of his claim the Veteran submitted multiple pictures that showed a rash on the arms and torso. The Veteran was afforded another VA examination in January 2013. The examiner noted a prior diagnosis of photosensitive dermatitis. The Veteran reported that every spring he developed similar appearing itchy eruptions that were limited to sun-exposed surfaces of the skin, including the bilateral arms, face, neck, upper chest, and back. The eruptions would begin within hours of first intense UV-light exposure. The Veteran described the rash as bright red bumps with multiple blister-like lesions. The Veteran had tried sun screen with SPF, antihistamines, and topical steroids, all with minimal benefit. Sun-protective clothing appeared to be the sole effective preventative measure. By the end of the summer, the Veteran tended to have an improvement in symptoms. The Veteran described no other symptoms indicative of connective tissue disease and he otherwise was healthy. The examiner noted the multiple pictures provided by the Veteran to VA demonstrating eruption of the skin. At times of extreme flare-ups, the Veteran described the rash as covering nearly the entire face, upper chest, upper back, bilateral forearms, and neck. At the time of the January 2013 examination there was no active eruption, but the examiner indicated that such would be expected given that there was less UV exposure and more protective clothing worn in the winter months. On further examination, there was no scarring of the skin, skin neoplasms, or systemic manifestations due to the skin problems. The Veteran had treated with oral or topical medication in the previous year, but not with systemic corticosteroids or other immunosuppressive medications. Instead, he had used antihistamines and topical corticosteroids for 6 weeks or more, but not constantly. The Veteran had not experienced any debilitating episodes in the previous year due to skin problems. As noted above, the Veteran had no observed dermatitis at the time of examination, but based on his reported history and the photographs included in the claims file the examiner concluded that the Veteran's photosensitive dermatitis would result in estimated total body surface area of 5 to 20 percent and exposed body surface area of 20 to 40 percent. (In that regard, the Board notes that the examiner clearly transposed the percentages for total body and exposed body surface areas and this transcription error has been corrected in the foregoing sentence.) Finally, the examiner indicated that the Veteran's skin disability would have no impact on his ability to work. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the criteria for a 30 percent disability rating. See 38 C.F.R. § 4.7. Although the Board acknowledges that the Veteran's dermatitis was asymptomatic at the time of the January 2013 VA examination and involved only 2 percent of the total body during the July 2008 VA examination, the January 2013 examination report specifically indicated that the absence of dermatitis at that time would be consistent with the absence of UV exposure due to wearing more clothing as a result of the weather. The January 2013 VA examiner concluded that based on the Veteran's reported history and the photographs of record that during flare-ups the rash could encompass 20 to 40 percent of the Veteran's exposed body and 5 to 20 percent of his total body. Moreover, the Veteran had not been prescribed corticosteroids or other immunosuppressive drugs in the previous year. These findings most closely approximate a 30 percent disability rating. A 60 percent rating is not be warranted under DC 7806 because the Veteran's dermatitis did not cover more than 40 percent of his total body or exposed body and he had not been prescribed corticosteroids or other immunosuppressive drugs on a near constant basis in the previous year. In reaching that conclusion, the Board acknowledges the Veteran's contentions that during flare-ups his dermatitis covered more than 40 percent of his exposed body, to include the face, neck, back, chest, and arms. Although the Veteran certainly is competent to report experiencing a rash and the location and extent of such a rash, the Board ultimately affords significantly greater weight to the conclusions of the VA medical professional who, based on consideration of the Veteran's reported history and photographs of the rash provided by the Veteran, concluded that during flare-ups the Veteran's rash did not exceed 40 percent of his total body or exposed body. The Board affords the examiner's conclusions greater weight than the Veteran's because of the examiner's greater experience in determining total body and exposed body percentage coverage as part of her duties as a VA physician. In addition, no higher or alternative rating under a different DC can be applied. The January 2013 VA examiner specifically found that the Veteran did not have any scars as a result of his service-connected dermatitis. As such, a separate or higher rating is not permitted under 38 C.F.R. § 4.118, DCs 7800 to 7805. The Veteran, furthermore, does not have diagnoses or symptoms that more closely approximate those necessary for a separate or higher rating under 38 C.F.R. § 4.118, DCs 7807 to 7833 (2013). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 30 percent for the Veteran's photosensitive non-specific dermatitis. Furthermore, the Board concludes that this award is warranted for the entire period under which this appeal has been pending, and that assignment of staged ratings is not for application. Fenderson, 12 Vet. App. at 119. Rhinitis The Veteran's rhinitis disability is rated as noncompensable under DC 6522 for allergic or vasomotor rhinitis. The Veteran claims that the current rating does not accurately reflect the true nature and degree of his disability. Specifically, the Veteran contends that he has more than 50 percent obstruction of the nasal passage on both sides and/or complete obstruction on one side. Under DC 6522, a 10 percent rating applies where the evidence demonstrates allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 30 percent rating applies where the evidence demonstrates polyps. 38 C.F.R. § 4.97, DC 6522 (2013). Multiple service treatment records include diagnoses of allergic or seasonal rhinitis. Shortly after separating from service, the Veteran underwent a general VA medical examination in July 2008. The Veteran reported seasonal allergies since early 2001. He described itchy, watery eyes, sneezing, and an itchy throat. The symptoms would occur in the spring, summer, and fall for a couple weeks per episode. Taking Tylenol and allergy medication sometimes helped. On examination, there were no nasal polyps and no obstruction. The examiner diagnosed seasonal rhinitis. The Veteran was afforded another VA examination in January 2013. The examiner noted a diagnosis of allergic rhinitis from 2002 and also reported review of the claims file. The Veteran discussed his initial treatment for rhinitis in 2001 during service, with continued itchiness and watering of the eyes, as well as associated sneezing and itchy throat. The use of antihistamines had limited attacks and had been very helpful. On examination, the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis (or septal deviation) or complete obstruction of one side due to rhinitis (or septal deviation). There was not permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions. There were no associated scars or other problems not otherwise covered by the examination worksheet. The rhinitis did not affect the Veteran's ability to work. The Board finds no objective evidence that would warrant a compensable rating for the Veteran's allergic or seasonal rhinitis. In this regard, the Board notes that VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Under DC 6522, a 10 percent rating requires a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. While the Board acknowledges the Veteran's reports of his nasal passage being totally or partially obstructed, objective examinations have consistently found less than 50 percent obstruction in each nasal passage. Moreover, the Veteran's reported symptoms do not involve stuffed or otherwise obstructed nasal passages. Instead, his reported symptoms have consistently included itchy, watery eyes, sneezing, and itchy throat. These are not the types of symptoms on which a compensable rating under DC 6522 may be assigned. In addition, in his September 2008 Notice of Disagreement he described that, "sometimes I can barely breath[e]." Although the Board acknowledges this reported symptom, such a report does not necessarily involve obstruction of the nasal passages. Finally, there is no lay or medical evidence that the Veteran has been diagnosed with polyps and, indeed, there is medical evidence to the contrary. As such, a compensable rating is not warranted under DC 6522. The Board has reviewed the remaining DCs relating to diseases of the nose and throat but finds DC 6522 is the most appropriate DC to apply in this case and that a compensable rating is not available for the Veteran's complaints under any other relevant DC. See 38 C.F.R. § 4.97, DCs 6502-6524 (2013). Accordingly, the preponderance of the evidence is against assignment of a compensable disability rating for the Veteran's service-connected allergic or seasonal rhinitis. As the greater weight of evidence is against the claim, there is no doubt on this matter that could be resolved in his favor. Furthermore, the Board concludes that this award is warranted for the entire period under which this appeal has been pending, and that assignment of staged ratings is not for application. Fenderson, 12 Vet. App. at 119. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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) (2013). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 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 evaluations for the service-connected dermatitis or rhinitis disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's dermatitis or rhinitis disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports a red, itchy rash of the skin that has been diagnosed as photosensitive dermatitis. These are precisely the types of symptoms and problems contemplated by the 30 percent rating under DC 7806. As to the rhinitis, the Veteran reports itchy, watery eyes, sneezing, and itchy throat. These symptoms do not warrant a compensable rating under DC 6522, but are the types of symptoms contemplated when rating rhinitis. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disabilities on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. As a final matter, as the Veteran has not submitted evidence of unemployability that is related to his service-connected dermatitis or rhinitis, and as the record does not otherwise raise the issue, the Board expressly finds that entitlement to a total disability evaluation based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In that regard, multiple records note the Veteran's ongoing employment at his father's motor vehicle repair shop. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating greater than 30 percent for photosensitive non-specific dermatitis is denied. Entitlement to a compensable initial rating for seasonal rhinitis is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs