Citation Nr: 1334611 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-42 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a disability rating in excess 30 percent for asthma. 2. Entitlement to a disability rating in excess of 10 percent for eczema. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to July 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the RO that, in pertinent part, denied a disability rating in excess of 10 percent for service-connected asthma with history or allergic rhinitis and sinusitis. The Veteran timely appealed for separate compensable ratings. In October 2008, the RO increased the disability evaluation to 30 percent for asthma, effective January 2, 2008; and assigned a separate 10 percent rating for sinusitis with rhinitis, effective January 2, 2008. These matters also come to the Board on appeal from a June 2009 decision of the RO that, in pertinent part, denied service connection for obstructive sleep apnea; diabetes mellitus; hypertension; right knee disability, including osteoarthritis; disability exhibited by left trigger thumb, and for disability exhibited by nose bleeds. The Veteran timely appealed. In March 2010, the Veteran testified during a hearing before the undersigned at the RO, with regard to his claim for an increased rating for asthma. In a September 2010 rating decision, the RO continued a 10 percent disability rating for eczema. In his February 2011 substantive appeal for his claim for entitlement to a disability rating in excess of 10 percent for eczema, the Veteran indicated that he wished to have a hearing before a Veterans Law Judge via videoconference. However, a January 2012 notation in the file reflects that he cancelled his hearing request and it is considered withdrawn. 38 C.F.R. § 20.702 (e) (2012). In March 2011, the Board dismissed the Veteran's claims for service connection for obstructive sleep apnea; diabetes mellitus; hypertension; right knee disability, including osteoarthritis; disability exhibited by left trigger thumb, and for disability exhibited by nose bleeds, at the request of the Veteran. In addition, the Board denied a disability rating in excess of 10 percent from January 2, 2008 to August 23, 2009 and allowed a 30 percent disability rating from August 24, 2009 for sinusitis with rhinitis. As such, these claims are no longer before the Board. Also in the March 2011, decision, the Board remanded the Veteran's claim for a disability rating in excess of 30 percent for asthma for additional development. FINDINGS OF FACT 1. For the entire rating period, the Veteran's asthma has not been manifested by an FEV-1 of 55 percent predicted or less, an FEV-1/FVC of 55 percent or less, at least monthly visits to a physician for required care of exacerbation, more than one attack per week with episodes of respiratory failure, or treatment with systemic (oral or parenteral) corticosteroids or immuno-suppressive medications. 2. For the entire rating period, the Veteran's eczema has not covered 20 percent or more of the Veteran's entire body or 20 percent or more of exposed areas affected and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six week or more during the past 12 month period. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 30 percent for asthma have not been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Code 6602 (2013). 2. The criteria for a disability rating in excess of 10 percent for eczema have not been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.21, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was provided with a letter in February 2008 that provided the required notification for his claim for an increased disability rating for service-connected asthma. With regard the Veteran's claim for an increased disability rating for service-connected eczema, a letter was sent in June 2010 that met all notice requirements. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. The Veteran indicated that he had no additional evidence to submit that was pertinent to his claims in November 2011. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in March 2011 in order to provide the Veteran with a VA examination to determine the current nature and severity of his service-connected asthma. The Veteran was provided with the required examination in May 2011. The Board finds that this VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). VA provided the Veteran the opportunity to have a hearing with regard to his claim for an increased disability rating for asthma. The appellant testified before the undersigned Veterans Law Judge in March 2010. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge 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 Veterans Law Judge explained the evidence necessary for a higher disability rating and that his current symptoms were most important to his claim, and inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased rating - laws and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased disability rating - asthma The Veteran is service-connected at a 30 percent disability rating under Diagnostic Code 6602, pertaining to bronchial asthma. He filed a claim for an increased rating in January 2008. Under Diagnostic Code 6602, a 10 percent rating is assigned for bronchial asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under Diagnostic Code 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2013). At his Board hearing, the Veteran indicated that he was taking Symbicort, which he used twice a day, an anti-inflammatory medication and a bronchodilator. He used a Proventil rescue inhaler and had been placed on Singulair and that, in the prior year, he had been to the doctor for treatment of his asthma six to seven times. VA pulmonary function tests conducted in September 2007 revealed an FEV-1 of 72.6 percent predicted and an FEV-1/FVC of 77 percent. A February 2008 VA examination report shows that the Veteran used Proventil, which he used very rarely-two to three times per year. The examiner reviewed the September 2007 pulmonary function tests and noted that they showed mild restriction that had been unchanged over the prior six to seven years. The examiner diagnosed very intermittent asthma with a large allergic component. It was fairly well controlled with preventive measures. September 2008 VA medical records show that the Veteran underwent pulmonary function tests in September 2008. FEV-1 was 78.2 percent predicted and FEV-1/FVC was 73 percent. Private medical records showing treatment from April 2008 to August 2009 reflect that the Veteran was prescribed Albuterol inhalation to use as needed. A January 2009 VA examination report shows that the Veteran reported that he did not have asthma attacks, but that if he exerted himself heavily, he would wheeze for a day. This occurred very infrequently. He had never been hospitalized for his asthma. He indicated that he took Proventil three times a day and beclomethasone, which he used twice daily. He could not recall ever being treated with high dose steroids for his asthma. The examiner found that the Veteran's asthma was under good control with Proventil and beclomethasone. VA medical records showing treatment from March to April 2011 show that the Veteran's asthma was stable, and that he was advised to continue treatment with dulera, albuterol as needed and flonase. A May 2011 VA examination report shows that the Veteran reported that he had several recent visits to his physician for a variety of illnesses, but could not say how many were for exacerbation of asthma. He estimated that he was seeing a provider every one to two months for an asthma related symptom. The examiner noted that asthma was treated with Dulera and as needed Albuterol. Pulmonary function tests were performed in March 2011. FEV-1 was 71.2 percent predicted, and FEV-1/FVC was 78 percent. A May 2011 private medical record shows that the Veteran reported that his heart raced when he took dulera. The private physician recommended that the Veteran be treated with an inhaled steroid. The Board finds that the evidence of record does not support an increased disability rating under the criteria for Diagnostic Code 6602. At no time were his FEV-1 or FEV-1/FVC results 55 percent or less. In addition, while the Veteran has made fairly regular visits to the doctor for treatment of his asthma symptoms, the evidence does not support a finding that he has required the visits on more than a monthly basis. The Veteran has not indicated that his appointments have been to treat exacerbations of his asthma. Finally, while the Veteran has been on several medications to treat his asthma, including several corticosteroids, these have been administered via inhalation; the Veteran has not required a course of systemic corticosteroids at least 3 times during any 12 month period. As such, a higher disability rating for asthma under Diagnostic Code 6602 is not warranted. The Board has considered rating the Veteran's asthma under other Diagnostic Codes in order to provide him with the most beneficial disability rating; however, he has not had incapacitating episodes of at least 4 weeks during a year, DLCO(SB) of 55 percent or less or met other criteria for higher ratings for diseases of the bronchi and trachea (Diagnostic Code 6600 to 6604). As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Increased disability rating - eczema The Veteran is service-connected for eczema at a 10 percent disability rating under Diagnostic Code 7806. He filed his claim for an increased disability rating in May 2010. Under Diagnostic Code 7806, Under this DC, a 10 percent rating is assigned for 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 required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six week or more, but not constantly during the past 12 month period. A 60 percent rating is assigned for dermatitis 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. A June 2010 VA examination report shows that the Veteran had flare-ups that occurred several times per year, for anywhere from three to six months. He had patches of eczema in several different locations that flared-up at intermittently, but often overlapped. He stated that the flare-ups occur at random times. Prescribed medications and creams included triamccinolone cream, acetonide cream and hydrocortisone cream. He indicated that flare-ups of the eczema were under both eyes, a patch on the left leg, his exterior ear canals and on the posterior aspect of the right ear along with the back of the neck. He had not had any other local or systemic symptoms or treatment for his skin disability. Upon examination, the Veteran had a two square centimeter patch under his right eye and a one square centimeter patch under his left eye. On the left lower leg, he had a 20 centimeter by 10 centimeter patch. These patches were fine papular dry regions with some excoriation and crusting on the patch on the left lower leg. The patches involved a total surface area of one percent and three percent of exposed surface area. Private medical records showing treatment from May 2010 to March 2011 reflect that he had intermittent eruptions of scaly areas on his ears, face and scalp and postinflammatory hyperpigmentation on his neck, chin and back. It was noted that the Veteran had atopic dermatitis and seborrheic dermatitis and was being prescribed medication. The approximate body surface involvement was between 10 and 15 percent. The Board finds that, based on the evidence of record, the Veteran's service-connected eczema does not warrant a higher disability rating under Diagnostic Code 7806. The evidence of record does not support a finding that the Veteran's eczema covered 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. The VA examiner noted that it involved a total surface area of one percent and three percent of exposed surface area. The May 2011 private physician noted that it involved approximately 10 to 15 percent of body surface area. In addition, while the Veteran was provided with corticosteriod creams and antibiotics to treat his eczema, there is nothing in the record that reflects that he was placed on any systemic corticosteroid or other immunosuppressive drugs over the appeals period. As such, a higher disability rating under Diagnostic Code 7806 is not warranted. Id. The Veteran apparently has more than one skin disorder according to his private medical records. However, even considering all of his skin symptoms as service-connected, he still does not meet the criteria for a higher disability rating under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board has considered rating the skin disorder under other Diagnostic Codes in order to provide him with the most beneficial disability rating; however, they would not result in a higher rating and the criteria of Diagnostic Code 7806, pertaining to eczema and dermatitis, is most appropriate for rating purposes. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's asthma and eczema are contemplated by the rating criteria set out in Diagnostic Codes 6602 and 7806, respectively. 38 C.F.R. § 4.97, Diagnostic Code 6602, 4.118, Diagnostic Code 7806. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. In fact, the Veteran has reported on several occasions that he is employed full time, and has been at the same position for over 17 years. See January 2009, June 2010, May 2011 VA examination reports. Accordingly, the question of entitlement to TDIU has not been raised. ORDER A disability rating in excess 30 percent for asthma is denied. A disability rating in excess of 10 percent for eczema is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs