Citation Nr: 1335569 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-16 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for non-specific dermatitis of the left hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1968 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that in relevant part granted service connection for a skin disorder of the left hand (muscle virus, also characterized as non-specific dermatitis) and assigned an initial noncompensable rating effective from November 12, 2008. This issue was previously remanded by the Board in September 2012 for further evidentiary development. In his Substantive Appeal, received in April 2010, the Veteran requested a hearing before a Member of the Board at the RO. A hearing was accordingly scheduled for July 2012, but before the hearing was convened, the Veteran's representative advised the RO in writing that the Veteran desired to withdraw his request for a hearing. Thus, the Board will accordingly proceed with adjudication of the appeal based on the existing record. See 38 U.S.C.A. § 20.704(e) (2012). FINDING OF FACT The Veteran's skin disorder of the left hand is manifested by intermittent subjective reports of rash, itching and pain of the left arm with superficial scarring of 1.2 centimeters and 1 centimeter in length; it is not manifested by objective evidence of a condition impact 5 or more percent of total or exposed body area, deep scarring, scarring covering 929 square centimeters or greater, painful or unstable scarring or scarring resulting in any degree of disabling effects. CONCLUSION OF LAW The criteria for establishing entitlement to an initial compensable disability evaluation for non-specific dermatitis of the left hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes, 7800, 7801, 7802, 7804, 7805, 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This 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). The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and identified private treatment records, and in May 2009 and October 2012, he was afforded formal VA examinations. The Veteran has not identified any additional evidence that has not yet been obtained. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). Facts and Analysis The Veteran contends that he is entitled to an initial compensable disability evaluation for his service-connected skin condition of the left hand. For historical purposes, service connection was granted for muscle virus left hand (non-specific dermatitis) in a June 2009 rating decision. A noncompensable (0 percent) disability evaluation was assigned under Diagnostic Code 7813, effective as of November 12, 2008 - the date of receipt of the Veteran's claim. A timely notice of disagreement was received from the Veteran in July 2009, but the initial noncompensable evaluation was continued in a February 2010 statement of the case. The Veteran subsequently appealed the assigned rating to the Board in April 2010. According to Diagnostic Code 7813, the skin condition is to be rated as disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7804, or 7805) or as dermatitis (Diagnostic Code 7806), depending upon the predominant disability. See 38 C.F.R. § 4.118. Upon receipt of the Veteran's claim, he was scheduled for a VA examination in May 2009. According to the examiner, the Veteran had been diagnosed with nonspecific dermatitis of the left palm. The Veteran endorsed having symptoms three to five times per year, with a cluster of vesicles that would form with a cyst, remaining for two to three weeks, causing tightness of the left arm into the shoulder until the cyst resolved. The Veteran had not been treated for this condition since military service, aside from putting a bandage on his hand because the condition was embarrassing. The Veteran endorsed radiating pain that he ranked as an 8 out of 10 with functional loss and weakness due to the pain and soreness of the cyst of the lower left palm. Examination revealed the skin to be warm and dry. There was good skin color and normal turgor without cyanosis, ecchymosis or jaundice. The left palm was inspected, revealing a well-healed scar. Range of motion of the left hand was full and strength was normal. The Veteran was diagnosed with left hand chronic dermatitis, nonspecific. There were no objective findings at the time of examination and no functional limitation. The Veteran was afforded an additional VA examination in October 2012. It was noted that the Veteran was informed that, to the extent possible, this examination should be performed during a period of active symptoms. Upon being informed of this fact, the Veteran requested that the examination be performed at this time. During the examination, the Veteran endorsed repeated episodes of blisters and bumps in the middle of his left hand with itching and pain over the last 40 years. He indicated that he did not get outward blisters any longer (not in the past year) but he continued to have itching of the left hand about once a month lasting for approximately one week. He also described pain several times per month in the center of the palm lasting for several days. Examination revealed a normal range of motion in the left hand with no discoloration, swelling, atrophy or tenderness. The left hand grasp strength was also deemed to be a 5 out of 5. The examiner diagnosed the Veteran with a muscle virus of the left hand (nonspecific dermatitis), status post excision, with residual scars. There was no objective evidence of a left hand condition otherwise, and at this time, there was no functional limitation. The examiner further noted that there was no scarring or disfigurement of the head, face, or neck, and that the Veteran did not treat any of his skin conditions with oral or topical medications. There was a 1.2 centimeter (cm) scar at the base of the left ring finger on the palmar aspect and a 1 cm scar in the mid palm of the left hand. Both scars were stable, non-tender, non-disfiguring and did not result in limited motion or function. In fact, the mid-palm scar was noted to be fairly noticeable. Also, while there was a callus of the left palm at the base of the ring finger, this was noted to be unrelated to the service-connected left hand condition. Finally, the examiner opined that none of the Veteran's skin conditions impacted his ability to work. The preponderance of the evidence of record demonstrates that a compensable disability evaluation is not warranted under any applicable code at any time during the pendency of this claim. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. As the Veteran's claim was received on November 12, 2008, the amended regulations are applicable to his claim. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2009)). As noted by the October 2012 VA examiner, there is no evidence of scarring or disfigurement of the head, face or neck associated with the Veteran's left hand skin condition. As such, Diagnostic Code 7800 is not applicable. See 38 C.F.R. § 4.118. Likewise, the preponderance of the evidence demonstrates that a higher evaluation is not warranted under any other Diagnostic Code pertaining to scarring. Diagnostic Code 7801 is used to rate scarring not of the head, face, or neck that is deep and nonlinear. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Note (1). Under this code, a compensable evaluation of 10 percent is warranted for this type of scarring that covers an area or areas of at least 6 square inches (39 square cm). The record does not reflect that the Veteran suffers any underlying soft tissue damage due to scarring, and the October 2012 VA examiner specifically found all scarring to be stable and non-disfiguring. Furthermore, the Veteran was noted to have scarring of only 1.2 cm and 1 cm; not scarring of 39 square cm or greater. As such, a compensable evaluation under Diagnostic Code 7801 would not be warranted. A compensable disability evaluation is also not warranted under Diagnostic Code 7802 for scarring that is superficial and nonlinear. While the Veteran's scarring is appropriately characterized as superficial, a compensable evaluation requires a superficial scar to cover 929 square centimeters or more. Also, Diagnostic Code 7804 applies to scarring that is unstable or painful. The October 2012 VA examiner specifically found the Veteran's scarring of the left hand to be stable and non-tender. As such, compensable disability evaluations are not warranted under Diagnostic Codes 7801, 7802 or 7804. See 38 C.F.R. § 4.118. Diagnostic Code 7805 instructs the rater to evaluate any disabling effects of scarring not considered in the above Diagnostic Codes under an appropriate diagnostic code. See id. However, the record does not reflect any objective symptoms associated with the Veteran's scarring that would warrant a rating under any other diagnostic code. While the Veteran has endorsed symptoms such as pain in his arm with blistering and functional loss during the pendency of his claim, this evidence alone does not demonstrate that the Veteran's scarring itself (which has been found to be stable and non-tender) is responsible for any additional symptomatology that would warrant a separate or higher rating under any other diagnostic code. As such, a compensable evaluation based on scarring is not warranted. Finally, the preponderance of the evidence of record reflects that a compensable disability evaluation is not warranted under Diagnostic Code 7806 for dermatitis. Under this code, a 10 percent evaluation is warranted with a skin condition impacts 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. Id at Diagnostic Code 7806. Both examination reports of record reflect that the Veteran has not received any treatment for this condition during the pendency of this claim. Furthermore, the condition has not been viewed during an examination, despite the Veteran being notified of the need to schedule his examination during a period of flare-up. The October 2012 VA examiner further concluded that the Veteran's dermatitis covered 0 percent of his total body area and 0 percent of exposed areas. While there was a callus at the base of the ring finger and some desquamation at the base of the middle finger, these conditions were noted to be unrelated to the Veteran's service-connected disability of the left hand. Furthermore, these conditions only impacted 0.1 percent and 0.001 percent of the Veteran's exposed/total body surface area. As such, the preponderance of the evidence of record demonstrates that a compensable disability evaluation under Diagnostic Code 7806 is not warranted. The record does not contain any other evidence of VA or private medical treatment suggesting that a compensable evaluation has been warranted at any time during the pendency of the claim. The Board recognizes that the Veteran believes he is entitled to a compensable disability evaluation for his service-connected skin condition of the left hand. In his July 2009 notice of disagreement, the Veteran described outbreaks occurring three to five times per year with pain, loss of skin and a red line traveling up his left arm. The Veteran also indicated in his April 2010 notice of disagreement that this condition had drastically altered the quality of his life. However, while the Board has considered these assertions, they fail to reflect that the Veteran meets the diagnostic criteria for a higher disability evaluation. There is still no objective evidence of scarring that would warrant a higher rating under Diagnostic Codes 7800, 7801, 7802 or 7804. Also, while the Veteran has described pain and redness traveling up his left arm, there is no objective evidence of this disability ever having affected 5 or more percent of the Veteran's total body or his exposed body areas. While the Veteran was notified of the importance of scheduling his examination during a period of flare-up, he decided to proceed with his examination in October 2012, informing the examiner that he had not suffered from any external blisters in the prior 12 months. As such, the Veteran's description of his symptomatology fails to reflect that he meets the criteria for a compensable evaluation under any applicable diagnostic code at any time during the pendency of this claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a compensable disability evaluation for non-specific dermatitis of the left hand must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected non-specific dermatitis of the left hand. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of intermittent symptomatology with rash, pain and itching. A noncompensable evaluation is meant to contemplate such limited symptomatology - a higher evaluation is available when there is evidence of deep, painful or larger scarring, or, scarring with some degree of functional impact, or, a condition covering more than 5 percent of total body area. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). ORDER The claim of entitlement to an initial compensable evaluation for non-specific dermatitis of the left hand is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs