Citation Nr: 1336600 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 04-14 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hair loss with scarring alopecia, to include as due to an undiagnosed illness. 2. Entitlement to an initial compensable evaluation for atopic eczematous dermatitis prior to July 10, 2013. 3. Entitlement to a rating in excess of 10 percent for atopic eczematous dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1992 and from December 2003 to March 2005. He served in the Southwest Asia Theater of Operations. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions that, in pertinent part, denied service connection for hair loss with scarring alopecia. The Veteran perfected a timely appeal. By rating action dated in June 2005, service connection was established for atopic eczematous dermatitis, effective from June 23, 2003. A noncompensable disability evaluation was established. The appellant appealed for a higher initial rating. The Veteran reentered duty in December 2003 whereupon the rating was discontinued until discharge from service in March 2005 when it was reestablished. The case was remanded for further development by the Board decisions in February 2010, August 2012, and June 2013. By rating action dated in August 2013, the noncompensable evaluation for atopic eczematous dermatitis was increased to 10 percent, effective from July 10, 2013. This is not a complete grant of the benefit and the matter remains before the Board. The issues now before the Board are as currently characterized on the title page, in view of the recent rating action taken. Virtual VA has been reviewed and considered in entering this decision. FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia Theater of operations. 2. Hair loss (alopecia areata) was first clinically manifested after discharge from service, and is a diagnosed condition; it is not attributable to an undiagnosed illness, or to a medically unexplained multisymptom illness. 3. There is competent evidence of record that hair loss is not related to service and that the Veteran does not have scarring alopecia. 4. Prior to and subsequent to July 10, 2013, atopic eczematous dermatitis has been manifested by exfoliative dermatitis with least 5 percent, but less than 20 percent of exposed areas affected, and a requirement for near constant therapeutic doses of topical corticosteroids as well as other skin medication. 5. The evidence does demonstrate that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected by atopic eczematous dermatitis, but no more was manifested as of July 10, 2013. CONCLUSIONS OF LAW 1. Hair loss with alopecia scarring is a diagnosed condition and was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating, but no more, for atopic eczematous dermatitis were met prior to July 10, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7817 (2013). 3. With resolution of reasonable doubt in the Veteran's favor, the criteria for a 30 percent rating, but no more, for atopic eczematous dermatitis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7817 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in July 2002, January 2004, November 2004, March 2006, February 2010 and thereafter of the information and evidence needed to substantiate and complete the claims, to include notice of what evidence the claimant could provide in support of the claims, the evidence VA would attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording VA examinations. These examinations are adequate to render a determination as to the issues on appeal. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.157(c). As such, the claims are ready to be considered on the merits. Factual Background At the outset, the Board notes that service connection is in effect for several skin disorders. These are hyperpigmented and elevated scars of the posterior neck, pseudofolliculitis barbae and atopic eczematous dermatitis. He seeks further service connection for hair loss and posterior scalp scarring occasioned thereby. The Veteran's service treatment records do not reflect complaints or findings pertaining to the scalp or his hair. The scalp was evaluated as normal on service discharge examination in July 1992. A claim for service connection of hair loss was received in May 2002. Service records reflect that the appellant was treated on a number of occasions for skin eruptions. In November 2004, he was seen for a rash on the elbows of two weeks' duration with itching and hyperpigmentation that he said came and went every couple of days and that came back worse at times. Examination disclosed macropapular lesions with weeping. Medication was prescribed. He returned in February and June 2005 for rash symptoms affecting both arms. Atopic eczematous dermatitis was diagnosed. In September 2005, the Veteran was seen for complaints of bumps on the posterior scalp and rash on the back of the head which he stated he had had since active duty that had not gone away. Examination disclosed a small papular eruption in the occipital area without secondary infection. Eczema was inactive at that time. Assessments following examination included eczema per history and pseudofolliculitis barbae. A medication list in December 2005 noted that he had been prescribed four medications, including Betamethasone, a corticosteroid, for skin irritation, eczema rash, and scalp lesions. A February 2006 clinical entry noted that that he had a rash on the left arm and back. The Veteran was afforded a VA examination in March 2006 and was observed to have eczema of the left cubital fossa and mild eczema/folliculitis over the nape of the neck. On VA outpatient visit in March 2007, he reported long-term usage of creams that had been ineffective over the past week with increased hyperpigmentation and hardening of the skin, and some weeping and oozing. Following examination, an assessment of eczema exacerbation - some secondary early infection - was rendered. The treatment plan included a trial of antibiotic, a change in lotions if necessary and referral to dermatology, if indicated. In May 2007, both forearms were observed to have a hyperpigmented plaque-like rash with no secondary infection. No rash was noted in November 2007. The Veteran presented testimony in November 2008 to the effect that when he enlisted he had a full head of hair with no issues and that he began losing it and developing scalp eruptions during his deployment to Operation Desert Storm. He related that he treated the condition by shaving his head and applying a topical ointment. He also testified that eczema affecting the arms was characterized by irritation, itching, scratching and hyperpigmentation that sometimes led to sores and scarring in those areas. He said that he became embarrassed when he felt the need to scratch in public. The Veteran was afforded a VA examination in July 2009 and provided history to the effect that he began to lose his hair in 1992 and that he had lost hair from the occipital region due to bumps he developed from shaving the scalp at the back of his head. Following examination, the diagnoses included scarring alopecia of the posterior occiput. The examiner opined that scarring alopecia was less likely than not caused by or a result of service. The rationale provided was that multiple examinations since service had indicated a normal skin and scalp examination. The appellant underwent a VA skin examination in October 2011 where it was found that he had alopecia areata, with hair loss limited to the scalp and face. The examiner opined that the condition was less likely than not incurred in or aggravated by service. The rationale provided was that service treatment records were negative for symptoms or treatment of the condition, to include the exit examination. It was also determined that the etiology of the skin condition was the trauma and use of clippers/instruments he used for grooming and that alopecia was due to the skin condition affecting the follicles. When examined for compensation and pension purposes in September 2012, the examiner found that the Veteran did not have scarring alopecia. She indicated that he did not have any skin condition that caused scarring or disfigurement. It was reported that he used topical corticosteroids constantly or near constantly and other topical medication six weeks or more but not constantly. Examination disclosed pertinent findings of mild maculopapular rash on the arms, bilaterally, extending above and below the flexor crease of the elbows. It was reported that total area of involvement was 20x10 centimeters of less than five percent. The Veteran underwent further VA dermatology evaluation in July 2013 where it was noted that the claims folder was reviewed. It was reported that he continued to use constant or near constant topical hydrocortisone for his extremities and the back of his neck. Eczematous dermatitis and alopecia areata were diagnosed. The examiner determined that eczema affected 20 to 40 percent of the total body and exposed areas. Hair loss was limited to the scalp in the lower back occipital area and the face. It was opined that alopecia was not directly related to service or aggravated by service and that hair loss was due to an undiagnosed condition. The examiner commented that the appellant had alopecia areata on the lower back of the scalp in the occipital area with skin thickening that was probably related to autoimmune disease with trigger factors. The examiner stated that this might be associated with atopic eczematous dermatitis, but that there was no scarring alopecia. It was added that the causes of alopecia areata were unknown and in some cases, the patient might regrow hair follicles in the area where there had been patchy hair loss. The examiner was subsequently requested to clarify the opinion following the July 2013 examination. In an August 2013 addendum, it was opined that there was no evidence that alopecia areata was caused by the Veteran's military service. It was noted that medical authority indicated that hair loss was due to autoimmune disease that might be triggered by a person's genetic makeup. It was added that this might be associated with atopic dermatitis but not caused by or aggravated by the condition and that there was no evidence that alopecia was triggered or worsened by military service or by co-existing atopic eczematous dermatitis. 1. Service connection for hair loss with alopecia scarring. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(b) (2013). A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e) (West 2002); 38 C.F.R. § 3.317(d) (2013). For purposes of § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R.§ 317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). Legal Analysis The Veteran asserts that he has hair loss and scarring alopecia that are of service onset, or are attributable to an undiagnosed illness caused by environmental conditions while serving in the Persian Gulf War Zone. The Veteran's service treatment records do not reflect that he was seen for hair loss or a condition characterized as scarring alopecia. In September 2005, the clinical evidence refers to complaints of bumps on the posterior scalp and a rash on the back of the head since active duty. However, this was assessed as pseudofolliculitis barbae for which a separate disability rating is in effect. As such, the Board must find that neither hair loss nor scarring alopecia is directly related to service. See 38 U.S.C.A. § 1110, 1131. Additionally, no physician in the record has provided a nexus between the claimed conditions and service, to include on multiple VA examination in 2009 and thereafter. On those occasions, the VA examiners determined that hair loss was less likely than not related to service. Rationale given in support of this finding included the fact that there was no evidence of treatment for such in service, as well as clinical authority to the effect that hair loss had an autoimmune etiology with trigger factors. Moreover, the Board observes that while the record indicates that the appellant was found to have scarring alopecia on at least one VA examination in 2009, when examined and considered by VA in 2011, 2012, and 2013, it was found that he did not have any condition of this nature. Therefore, the Veteran is not shown to have a current disability diagnosed as scarring alopecia for which service connection may be granted and there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225. He has not provided any evidence to the contrary in this regard. In the alternative, the Veteran argues that hair loss is attributable to an undiagnosed illness caused by environmental conditions while serving in the Persian Gulf War Theater of Operations. The Board points out, however, that the appellant has been determined to have alopecia areata (hair loss). As such, this is a known clinical diagnosis and is not a chronic undiagnosed or medically unexplained chronic multisymptom illnesses under 38 C.F.R. § 3.317(a)(2)(i) for Persian Gulf War disability purposes. Therefore, this theory of entitlement is unavailing as a basis to establish service connection and a discussion of such is unnecessary. See VAOPGCPREC 8-98. Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for hair loss and scarring alopecia as undiagnosed illnesses under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317;Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). The Board would also point out that neither the Veteran nor his representative is competent to opine that the claimed disorder is due to an undiagnosed or multisymptom illnesses. The Board recognizes that lay assertions may serve to establish a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A layman is competent to report what he experiences through the senses and lay evidence must be considered when a Veteran seeks disability benefits. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran's statements alone cannot be accepted as competent medical evidence. This is because this question involves a medically complex question that goes beyond their lay assertions. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A clinical professional has the greater skill. In this instance, the clinical professionals have determined that he does not currently have scarring alopecia or have hair loss related to service. The Veteran has presented no competent evidence to the contrary. In summary, the Board concludes that there is no reliable and/or probative evidence indicating that the Veteran's hair loss is related to service or to any incident therein. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim and service connection is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Higher rating for atopic eczematous dermatitis. Service connection for atopic eczematous dermatitis was granted by RO rating decision in June 2005. A noncompensable disability evaluation was granted under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806. However, the issue remains in appellate status as the maximum schedular rating has not been assigned from the date of service connection. See AB v. Brown, 6 Vet. App. 35 (1993). Pertinent Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. § Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the initial assignment of a disability rating has been appealed, the Board must consider the rating, and, if indicated, the propriety of a staged rating, from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). It is noted that some ratings for skin disorders were changed effective October 2008. The codes discussed herein were not altered and have remained the same throughout the appeal period. 38 C.F.R. § 4.118, Diagnostic Code 7806 provides that 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 required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for 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 weeks or more, but not constantly, during the past 12-month period. 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 warrants a 60 percent rating. Id. Alternatively, the Veteran's skin disorder may be rated under 38 C.F.R. § 4.118, Diagnostic Code 7817 for exfoliative dermatitis which provides that a 10 percent rating is warranted for exfoliative dermatitis where there is any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating warrants any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where there is generalized involvement of the skin without systemic manifestations, and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy required during the past 12-month period. Id. Legal Analysis The evidence depicted above reflects that the appellant's service-connected atopic eczematous dermatitis is somewhat quiescent at times, but it is demonstrated that the condition has been primarily marked by a waxing and waning course of mild to severe inflammation, as indicated in March 2007 when eczema exacerbation resulted in secondary infection. Manifestations of the service-connected dermatitis are shown to include pruritis (itching), weeping lesions, and unsightly hyperpigmentation on exposed areas of the skin. Evidence presented since the inception of the claim reflects that the appellant has been prescribed multiple medications for skin symptoms, to include a topical corticosteroids, but that symptoms persist. Under the circumstances, the Board concludes that such symptoms on the whole more closely approximate the rating criteria for a 10 percent disability evaluation under 4.118, Diagnostic Codes 7806, 7817 for exfoliative dermatitis where there is any extent of involvement of the skin with some significant involvement and the need of topical claims. Thus, resolving reasonable doubt in the appellant's favor, a 10 percent rating but no more is warranted prior to July 10, 2013. Based on the foregoing, the Board concludes that the symptoms associated with the Veteran's service-connected atopic eczematous dermatitis have more nearly approximated the criteria for a 10 percent disability evaluation since the grant of service connection and that a uniform rating is appropriate for the appeal period prior to July 10, 2013. See Fenderson v West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board finds, however, that a rating in excess of 10 percent is not warranted for atopic eczematous dermatitis under the applicable schedular rating criteria until July 10, 2013. Specifically, the Board points out that although the Veteran experiences the symptoms cited above, it is not shown that there is more substantial involvement of any exposed areas, nor has a constant inflammatory process been clinically identified. The Veteran's recurring skin symptoms appear to abate with treatment but that he continues to have flare-ups. There is no evidence of marked disfigurement and prior to July 2013, there is no showing that more than 20 percent of the affected area was involved. As of the July 10, 2013 examination, however, a 30 percent rating, but no more, is warranted. The examiner at that time noted involvement of both upper arms, the back, neck, and upper legs. This is more significant coverage than previously noted. Thus, a 30 percent rating is warranted as of that date, but a higher rating is not for assignment. It is not shown that there were systemic manifestations or such use of medications as required for the higher ratings. That is, the evidence does not reflect that the Veteran has ever utilized systemic corticosteroids or other therapies that include immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy, or that he has had systemic manifestations of the disorder for which a higher rating might be warranted. Under the circumstances, the Board concludes that the 10 percent disability rating adequately contemplates the current degree of disability associated with the service-connected atopic eczematous dermatitis prior to July 10, 2013, and that a 30 percent rating is warranted, thereafter. Finally, the record does not establish that the rating criteria are inadequate for evaluating the Veteran's service-connected skin disorder at issue. The evidence shows that the relative manifestations and the effects of the disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Further, there is no indication that the Veteran is unemployed due to his the service-connected skin disorder. As such, a total rating claim is not raised by the record. (CONTINUED ON NEXT PAGE) ORDER Service connection for hair loss with scarring alopecia is denied. A 10 percent rating, but no more, for atopic eczematous dermatitis is granted prior to July 10, 2013, subject to controlling regulations governing the payment of monetary awards An evaluation of 30 percent, but no more, for atopic eczematous dermatitis is granted, on and after July 10, 2013, subject to the controlling regulations governing the payment of monetary awards. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs