Citation Nr: 1337159 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 06-17 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability rating in excess of 10 percent each for folliculitis and discoid lupus erythematosus prior to September 25, 2009, and in excess of 30 percent total thereafter, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1975 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which continued a 10 percent disability rating for folliculitis of the facial area. A subsequent rating decision in August 2011 granted a separate claim of service connection for discoid lupus erythematosus and assigned a disability rating of 10 percent effective November 2004. A December 2011 rating decision implemented the Board's award of a 30 percent disability rating for folliculitis as of September 2009 and incorporated the formerly separate 10 percent evaluation of discoid lupus erythematosus within this 30 percent rating. This claim was previously before the Board in October 2011, when an increased disability rating for folliculitis prior to September 2009 was denied, but a disability rating of 30 percent was granted as of September 25, 2009. The Veteran appealed the denial of increased rating prior to September 2009 and the denial of an extraschedular rating before and after that date to the United States Court of Appeals for Veterans Claims (Court), which in March 2013, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. This claim was then remanded in June 2013 for further development, to include providing an additional VA examination and opinion. As the requested development has been satisfactorily completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection on a secondary basis for hypertension, osteoporosis, proteinuria, hypoparathyroidism, Vitamin D deficiency, thyroid nodule, and erectile dysfunction, as well as entitlement to benefits for the Veteran's children secondary to his service-connected disabilities have been raised by the Veteran in his letter of July 2013, but have not been adjudicated by the RO. Therefore, with the exception of inclusion of benefits for the Veteran's children in the question of his extraschedular compensation claim, a claim which was already on appeal, the Board does not have jurisdiction over the issues listed, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. Prior to September 25, 2009, the Veteran's skin disabilities of the face and neck, folliculitis and discoid lupus erythematosus each affected less than 5 percent of the exposed area of the body, required use of systemic therapy for less than six weeks in the previous twelve months, and involved only one characteristic of disfigurement. 2. Since September 25, 2009, the Veteran's skin disabilities of the face and neck, including folliculitis and discoid lupus erythematosus, have required systemic therapy for more than six weeks in the previous twelve months but not constantly or nearly constant, and each affect less than 5 percent total exposed body surface affected and involve two or three characteristics of disfigurement. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent each for folliculitis and discoid lupus erythematosus prior to September 25, 2009, and in excess of 30 percent total thereafter, to include on an extraschedular basis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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). Here, the Veteran was sent letters in February 2005 and May 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The May 2006 letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, after fully compliant notice was issued in the May 2006 communication, the claim was readjudicated on many occasions, most recently in September 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's electronic folders, as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's June 2013 remand, VA provided the Veteran with a medical examination in August 2013. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus, VA has complied with the June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the Veteran's disabilities are assigned staged ratings of 10 and 30 percent, both of which are on appeal here. Based on the evidence discussed below the Board will not disturb the current staged ratings. Under the rule against pyramiding, 38 C.F.R. § 4.14, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes is to be avoided. While the rating criteria pertaining to skin disabilities, scars, and disfigurement were revised in October 2008, there were no changes made to the Diagnostic Codes involved in rating the Veteran's skin disabilities, Diagnostic Codes 7800 and 7806. Previously, the Veteran's skin disabilities of the head and neck, folliculitis and discoid lupus erythematosus, were separately rated at 10 percent each. The 30 percent disability rating effected as of September 25, 2009, encompasses the Veteran's total skin disability involving the head and neck in a single rating and includes both conditions. As both periods are currently on appeal, the Board will consider whether increased ratings are warranted under the respective applicable diagnostic codes. Skin disabilities such as dermatitis or eczema, which include both folliculitis and discoid lupus erythematosus, are rated under Diagnostic Code7806. (Diagnostic Code 7809 directs that discoid lupus erythematosus be rated under Diagnostic Codes 7800-7806, depending on the predominant symptomatology.) Here, Diagnostic Code 7806 is most applicable. The relevant criteria provides for a 10 percent disability rating assigned where at least five percent, but less than 20 percent of the entire body or at least five percent, but less than 20 percent of exposed areas are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The maximum 60 percent disability rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there is 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 (2013). The provisions of Diagnostic Code 7806 also allow for the disability to be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800 or as scars under Diagnostic Codes 780-7805, depending on the predominant disability. 38 C.F.R. § 4.118 (2013). Since the Veteran's disability affects the skin of his head and neck, the rating criteria of Diagnostic Code 7800 are also for consideration. In pertinent part, under Diagnostic Code 7800, where there is one characteristic of disfigurement present, a 10 percent disability rating is warranted. Two or three characteristics of disfigurement are assigned a 30 percent disability rating; four or five characteristics of disfigurement merit a 50 percent disability rating; and six or more characteristics of disfigurement warrant an 80 percent disability rating. Visible or palpable tissue loss and gross distortion or asymmetry of the facial features would result in higher disability ratings based on the specific areas affected. 38 C.F.R. § 4.118. The rating criteria list the eight characteristics of disfigurement as follows: scar five or more inches (13 or more cm) in length; scar at least one quarter inch (0.6 cm) wide at the widest part; surface contour of the scar elevated or depressed upon palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square cm); skin texture abnormal in an area exceeding six square inches (39 square cm); underlying soft tissue missing in an area exceeding six square inches (39 square cm); and, skin indurated and unflexible in an area exceeding six square inches (39 square cm). 38 C.F.R. § 4.118. Facts and Analysis The Veteran has submitted numerous written statements regarding the impact of his skin disabilities on his life. He specifically has cited his need to avoid sun exposure, which causes him to have difficulty maintaining his yard and limits his ability to participate in outdoor activities with his family. His wife has stated that their travel has been limited by the Veteran's need to avoid the sun. The Veteran works the night shift out of concern about sun exposure and that he feels conspicuous in public due to his facial scarring. As a result, he tries to avoid most social interaction. He has reported avoiding treatment for his skin disabilities because of the expense of the treatment and has reported multiple side effects from his treatment for his skin problems. The May 2005 VA examination noted skin lesions on the face with symptoms of intermittent itching, peeling skin, pigment change, rash, and pain, and flare-ups occurring about every 2 months. Treatment included both steroid cream and injected steroids, both for less than six weeks total duration. The lesions were located on the left ear lobe, in an area about the size of dime, and in multiple patches on the neck, forehead, nose, left malar area, and right lower face, varying in size from that of a nickel to that of a dime. The total percentage of exposed areas and body areas was each less than 5 percent. The July 2006 VA examination noted diagnoses of both folliculitis and discoid lupus erythematosus, with multiple small healed facial scars. The texture of the skin was normal and the scars were stable and superficial, but slightly hypopigmented. There was no disfigurement, distortion, or limitation of motion due to the scars. An October 2008 written statement from the Veteran's treating physician noted a history of folliculitis with recurrent flare-ups in the beard and neck regions, and of discoid lupus erythematosus with recurrent exacerbations on his forehead and cheeks. His conditions were treated with topical antibiotic solutions, oral antibiotics, incision and drainage of lesions, and topical steroids. In addition, he was cautioned to avoid sunlight exposure, use sunscreen, and wear sun protective clothing for his discoid lupus, and to avoid shaving with respect to his folliculitis. The September 2009 VA examination noted scattered small, shallow, nontender scars on each check between the Veteran's mustache and his eye, with the largest being 3/4 by 1/4 cm on the right cheek. The others were smaller and irregular and less noticeable until pointed out by the Veteran. He reported skin breakdown over the scars two or more times per year, but less than monthly. There were lesions under the left side of the chin and the corners of the mustache, which the Veteran reported were itching and burning. The area of the scars was less than six square cm, with three on each cheek, the largest of which was 1/4 cm by 3/4 cm. The scars were painful but had no signs of breakdown. They were superficial but there was an area of hypopigmentation that was 1/4 cm long by 1/8 cm wide. He reported having lost less than 1 week of work due to treatment for flare-ups of his disability and said he worked the night shift to avoid sunlight. He used topical cortisone and other creams on his lesions, took antibiotics during flare-ups and had steroid injections of small lesions of the face and neck. Use of systemic corticosteroids and antibiotics over one to six weeks in the past year was noted. The percentage of exposed areas and total body areas affected were both less than 5 percent. The November 2010 VA examination noted continued red patches on the Veteran's forehead, cheeks, and nose and in the outer left ear. He used a topical corticosteroid cream to treat flare-ups. The condition affected less than 5 percent of both exposed areas of the body and of the total body surface. The August 2013 VA examination noted diagnoses of folliculitis of the facial area and discoid lupus erythematosus on the head, face, or neck. The resulting scars on his head, face, and neck were not painful or unstable, but were minimal and difficult to visualize due to facial hair, with no evidence of disfigurement. The skin in the areas of the scars was hyperpigmented, with that in the beard area measuring 11 cm by 7 cm and a lesion on the left ear auricle measuring 1/2 cm by 1/2 cm. The length and width of the scar at the widest part was 1 cm square. The approximate total area of the hyperpigmented skin was 77 square cm. There was no distortion or asymmetry of facial features. The examiner noted that the Veteran used topical cream for the discoid lupus lesions located on the right side of his forehead and inside the left auricle of the left ear. He reported regular flare-ups when exposed to the sun. The folliculitis of the beard area required use of clindamycin solution daily, and would flare up every two to three months. He received steroid injections in the lesions if the antibiotics didn't work. He reported using oral medications six weeks or more in the past year and topical steroids for six weeks or more in the past year, but neither one on a constant or near-constant basis. The examiner reported that the total body area and total exposed body area for each of the disabilities was less than five percent. Based on the Veteran's appearance at the time of the examination, there was no evidence of severe disfigurement, his conditions were stable, and there were no scars related to acne. It was difficult for the examiner to determine the extent of the condition during a flare up without resorting to mere speculation. The examiner stated that the literature supported the Veteran's assertions that his discoid lupus was aggravated by sun exposure and that he should avoid sunlight exposure during the hottest part of the day and take precautions such as wearing sunscreen and long sleeves. However, he would be able to perform his yard work without restrictions in the early mornings and late afternoons when sun exposure is less intense. There were no known limitations on his work hours due to his skin disability. The Veteran has since submitted additional medical records showing the need for ongoing treatment of his skin disabilities during the most recent flare-up and the symptoms present during this time. He waived initial consideration of this evidence by the RO and the Board has considered it in the analysis below. Prior to September 25, 2009 Based on the evidence set forth above, the Veteran's skin disabilities prior to September 25, 2009, were consistent with the assigned separate disability ratings of 10 percent for folliculitis and discoid lupus erythematosus. Both affected no more than 5 percent of the entire body and of the exposed areas, and both involved the use of systemic therapy for less than six weeks in the previous 12 months. In addition, each involved at most one characteristic of disfigurement, namely a scar at least one quarter inch wide at the widest part. The Board acknowledges that the specific measurements of the skin lesions prior to September 25, 2009, are not included in the reports of examination, which makes evaluation under the rating criteria for scars difficult. However, Diagnostic Code 7806 provides for the skin disability to be rated as either based on affected body area and type of treatment or as scars or disfigurement (Diagnostic Code 7800), but does not provide for separate ratings of the same disability under both criteria. In light of these considerations, the Board finds no basis for a disability rating in excess of 10 percent for either folliculitis or discoid lupus erythematosus prior to September 25, 2009. After September 25, 2009 The evidence with respect to the severity of the Veteran's skin disabilities of the head, face, and neck supports the assigned 30 percent total disability rating as of September 25, 2009. The examination of that date included evidence that the Veteran required systemic therapy of a total duration of at least six weeks in the previous 12 months, but not constantly. Such treatment warrants a 30 percent disability rating under Diagnostic Code 7806. In addition, the Veteran's skin disabilities included evidence of scarring consistent with a 30 percent disability rating under Diagnostic 7800. Specifically, the Veteran had hypopigmented skin in an area greater than 39 square cm, and the widest part of one scar was greater than 0.6 cm, such that he had two characteristics of disfigurement. In light of this evidence, a rating beyond the 30 percent evaluation for the combination of skin disabilities afforded as of September 25, 2009, is not warranted. As noted above, Diagnostic Code 7806 provides for the skin disability to be rated as either a skin disability based on affected body area and type of treatment or as scars or disfigurement (Diagnostic Code 7800), but does not provide for separate ratings of the same disability under both criteria. The evidence does not support a still-higher rating of 50 percent under Diagnostic Code 7800 or 60 percent under Diagnostic Code 7806. The former would require four or five characteristics of disfigurement, including loss of underlying soft tissue, indurate or unflexible skin, abnormal skin texture, scar adhesion to underlying tissue, elevation or depression of the skin surface, or a scar more than 13 cm long, none of which have been demonstrated on examination. The later Diagnostic Code requires a showing that the skin condition affects more than 40 percent of exposed surface areas or more than 40 percent of the entire body, or constant or near-constant systemic therapy such as corticosteroids or immunosuppressants in the past 12 months. The recently submitted evidence does not indicate that there has been any change to the basic manifestations of the Veteran's disabilities even during the most recent flare-up. The Board acknowledges that the Veteran was not having a flare-up of either skin condition at the time of his relevant VA examinations and the VA examiner expressed an inability to estimate his condition during such a flare-up. As the flare-ups do not appear to follow a predictable pattern, scheduling further examination does not appear to be worthwhile, and could very well delay the claim with no useful benefit flowing to the Veteran. Moreover, in light of the currently assigned rating and the criteria involved, it would be extremely unlikely that the Veteran's disabilities during flare-up would warrant an increased rating. Despite the given size of the Veteran's hypopigmented skin, the total exposed surface area affected by both skin disabilities here is still less than 5 percent, and would not exceed 40 percent in flare-up even if the Veteran's entire face were affected. In addition, by the Veteran's own description, the systemic therapy of corticosteroid injections is used only when there is a flare-up that is not addressed by the use of topical steroids and antibiotics, and this is already accounted for in the assigned rating. The rating criteria related to scarring would apply only to the resulting scars from the skin disabilities, not to the involved surface area during a flare-up. In short, while a flare-up is by definition more uncomfortable for the Veteran, it would not be sufficient to trigger an increased disability rating. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Board notes the Veteran's novel argument that he should be afforded extraschedular consideration based on the fact that two of his children have manifested skin disabilities. The purpose of all disability ratings provided by VA, including extraschedular benefits, is to compensate for the impairment of the Veteran and the affect on his specific loss function under the ordinary conditions of daily life including employment. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.5(b), 4.10. Benefits are afforded based on disabilities or health effects on the Veteran's children only in the specific instances of children of Vietnam veterans who suffer from spina bifida or specific birth defects as a result of their parents' exposure to harmful chemicals. 38 U.S.C.A. §§ 1805, 1811, 1812. The Veteran has not been shown to have served in Vietnam. Moreover, the skin disabilities manifested by the Veteran's children are not conditions covered by the specific provisions referenced. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to his skin disabilities of the head and neck, and provide for higher ratings for more severe symptoms. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a disability rating in excess of 10 percent each for folliculitis and discoid lupus erythematosus prior to September 25, 2009, and in excess of 30 percent total thereafter, to include on an extraschedular basis, is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs