Citation Nr: 1337730 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-07 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a higher (compensable) initial disability rating for eczematous dermatitis. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from May 1989 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection and assigned a noncompensable (zero percent) initial rating. The Veteran appealed the initial rating assigned in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. FINDING OF FACT Throughout the entire initial rating period, eczematous dermatitis has been productive of involvement of less than 5 percent of the skin of the entire body, less than 5 percent of the exposed areas of the body, and has required treatment with only topical medications. CONCLUSION OF LAW The criteria for an initial compensable rating for eczematous dermatitis have not been met or more nearly approximated at any time during the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA treatment and records of post-service treatment at Scott Air Force Base in Illinois. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded a VA examination in October 2009, during which the examiner conducted a physical examination of the Veteran, was provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board notes that the Veteran failed to report for a VA examination scheduled in October 2012. As discussed in more detail below, the Board concludes the Veteran was properly notified of the VA examination. To the extent the findings from the 2009 examination are somewhat dated, this is not due to a failure in VA's duty to assist, but a failure on the Veteran's part to cooperate in developing his claim. The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed 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. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating for Eczematous Dermatitis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the 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 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). 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 rating will be assigned. 38 C.F.R. § 4.7 (2013). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's appeal for a higher initial rating for eczematous dermatitis is an appeal from the initial assignment of a disability rating in October 2009. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. In the October 2009 decision on appeal, the Veteran was awarded service connection for eczematous dermatitis and granted an initial evaluation of zero percent effective June 2, 2009. The Veteran's eczematous dermatitis disability is rated under 38 C.F.R. § 4.114, Diagnostic Code (DC or Code) 7806. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.411, DC 7806 (2013). DC 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (zero percent) disabling. Dermatitis or eczema that involves 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, is rated 10 percent disabling. Dermatitis or eczema that involves 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, is rated 30 percent disabling. Dermatitis or eczema that involves 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, is rated 60 percent disabling. Id. The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with eczematous dermatitis including visually identifiable signs of rash and skin disturbance as these are capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the eczematous dermatitis merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Veteran contends that eczematous dermatitis covers up to 80 percent of his feet, and also manifest twice a year on the arms and legs. Symptoms range from a slight itching sensation to severe itching sensation which impacts concentration and may result in breaks in the skin. The Veteran also contends that symptoms ebb and flow, with worsening symptoms during winter months. To the extent that these are observable symptoms, the Veteran's endorsements are competent. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. After reviewing the entire claims file, the Board finds that the Veteran's eczematous dermatitis has not been compensably disabling for any period on appeal. The Board finds that eczematous dermatitis has been productive of involvement of less than 5 percent of the skin of the entire body, less than 5 percent of the exposed areas of the body, and has required treatment with only topical medications. On VA examination in October 2009, the Veteran endorsed eczema since 1992. The Veteran reported that in the prior 12 months, symptoms had been local or systemic and included occasional itching during flare-ups. The Veteran stated that his symptoms caused no functional impairments. A physical examination of the skin revealed that the scalp, neck, and arms were clear. There was a small scar on the face, but no plaques or papules. A small scar was observed on the back, as were scattered red vascular papules. The hands showed papules on the palm in a 1 millimeter group, and on the left 4th finger in a 4 millimeter group. The Veteran's feet had red papules on the dorsal and one 2 centimeter plaque on the right dorsal of the foot. Additionally, some scaling was observed along the sides of the feet. The examiner determined that eczematous dermatitis was stable and treated using only topical steroids. In a February 2010 record of treatment from Scott Air Force Base, the Veteran reported eczema on the feet and ankles which manifest as a dry, flaky, itchy rash. The Veteran also complained of a rash on his upper thigh that was itchy, red and not scaly. The Veteran noticed the rash after wearing tight baseball pants. Evaluation of the skin revealed a flakey rash on the soles and dorsum of the feet extending to the distal ankles. Erythematous macules were observed on the Veteran's thighs, though the physician opined that this was likely contact dermatitis due to wearing tight baseball pants. Topical medication was prescribed. In a February 2010 statement the Veteran indicated that he had been using systemic therapy in the form of corticosteroids continuously for the prior 15 years due to continual outbreaks on the feet, legs, arms, and torso. The Veteran stated that when not using prescribed medications, his eczema spreads "completely out of control." The Veteran indicated that he does not use medication every day, but if he waits more than three days without use, itching symptoms become intolerable. The Veteran also stated that during his VA examination in October 2009, he believes that symptoms were only so minimal due to his use of medication. In August 2010, the Veteran reported to a medical professional at Scott Air Force Base that he had a 19 year history of eczema and had been tested for fungal infection, but the test came back negative. The disorder, which involved inflammation and scaling of the feet - and previously the ankles - was now also present in between the toes. Following an evaluation, the Veteran was again prescribed topical medications for treatment. In a July 2012 hearing before a decision review officer at the RO in Lincoln, Nebraska, the Veteran contended that the day of his VA examination was "a good day" with regard to skin symptomatology. He went on to state that when symptoms are bad, he typically treats such symptoms with topical medications, and at the time of the VA examination he had been recently using such medication; hence, the minimal symptomatology. Furthermore, the Veteran endorsed that symptoms are worse during winter months, at which time he has "small patches on [his] forearms, upper arms, and on [his] thighs." The Veteran stated that flare-ups of his skin disorder occur at least once a month, and average 15 to 20 times a year. The Veteran stated that he was using corticosteroids and that a doctor had recommended the use of systemic therapy. The Veteran said that during flare-ups the total area affected is more than five percent, and that one hundred percent of the skin of his feet was affected - though he also recognized that he was unsure what percentage of his total body area that would amount to. Due to their transient nature, and at the suggestion of the decision review officer, the Veteran agreed to supply photographs of his skin symptomatology during a flare-up. The Veteran subsequently submitted photographs, however the Board notes that these photographs are only of the Veteran's feet. A July 2012 letter to VA from a certified registered nurse anesthetist, indicated that the Veteran's feet, forearms, upper arms and thighs "break out" in a rash occasionally, which the Veteran relied on corticosteroids from his physician to control. The nurse also reported that rashes of the arms and thighs, when present, covered roughly 10 percent of the surface of the limbs, and 80 percent of the surface of his feet if left unchecked. The Veteran was scheduled for a VA examination in October 2012 for which he did not report. An August 2012 letter sent to the Veteran's last known address reflects that the Veteran had been informed that a VA examination was going to be scheduled, but an October 2013 statement from the Veteran's representative indicated the Veteran did not receive a notice of an examination. Where a veteran fails to report for a VA examination relating to an original compensation claim - which the Veteran's appeal for a higher rating is - the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Thus, although the Veteran in this case failed to report to the October 2012 examination, the Board will review the claim based on the evidence before it. Furthermore, while the argument is now made that the Veteran was not notified of his examination, the record includes a properly addressed letter indicating otherwise. "There is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). To rebut the presumption in this case, the Veteran bears the burden of producing clear evidence that VA did not follow its regular practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. The Veteran has not presented evidence to rebut the presumption of regularity. All that is contained in the representative's 2013 brief is an allegation that the Veteran was not informed of the examination. It must be noted, though, that the December 2012 supplemental statement of the case discussed the fact that he had failed to appear for an examination and stated "If you are willing to be scheduled for another examination, please let us know." (emphasis in original). The Veteran did not respond in any way, and the representative's arguments more than one year later are simply not persuasive. Had the Veteran not, in fact, known about the examination, it is reasonable to conclude that he would have responded in a timely fashion to the SSOC and indicated such, along with his willingness to report. He did not do so. Therefore, it is presumed that the Veteran was properly notified of his examination. The Board finds the Veteran's competent assertions regarding the extent and treatment of service-connected eczematous dermatitis, including the level of symptomatology during flare-up, to be not credible and of no probative value in evaluating the service-connected disability. Specifically, while the Veteran has continued to endorse the prescribed use of systemic therapy, including corticosteroids, evidence associated with the claims file of dermatological treatment at Scott Air Force Base shows that the Veteran's treatment has been limited to topical medications. Furthermore, during neither treatment nor VA examination has the Veteran endorsed symptoms which extend beyond the feet and ankles. Rather such endorsements have been made only while seeking entitlement to a compensable rating. It is reasonable to assume that while seeking treatment for eczematous dermatitis of the feet, the Veteran would be expected to fully describe his skin symptomatology to a medical care provider. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7)). Yet even while seeking treatment for skin problems of the feet, the Veteran repeatedly fails to endorse other skin symptoms. The single exception relates to a report a February 2010 endorsement of upper thigh symptoms which were subsequently determined to be caused by tight clothing. The Board has also considered the July 2012 statement offered by a nurse on the Veteran's behalf. However, in this statement the nurse indicates that the Veteran uses corticosteroids - in spite of a lack of clinical record of such use - and generally seems to parrot the Veteran's contentions made for compensation purposes. Furthermore, there is no indication of what, if any, records the nurse reviewed prior to writing her letter, or if her statements are based entirely on the Veteran's reports of history. The remaining competent, credible evidence shows that the Veteran's eczematous dermatitis affects less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period. Furthermore there is affirmative evidence showing that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs has not been required during the past 12-month period or any prior 12-month period as required under DC 7806 for a compensable rating. See 38 C.F.R. § 4.118, DC 7806. The Board has also considered whether a higher rating may be available under a different Code, and finds that none is. Specifically, the Veteran does not have scars or burn scars related to service-connected eczematous dermatitis (DCs 7800, 7801, 7802, 7804). The Board has also reviewed the remaining Codes for rating skin disabilities under 38 C.F.R. §4.118 and finds that a compensable rating under any Code other than DC 7806 is not warranted. Having reviewed the entire record, the Board finds that a compensable rating for eczematous dermatitis is not warranted at any time during the period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected eczematous dermatitis. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the Veteran's service-connected eczematous dermatitis above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability based on the percentage of skin surface involvement and type of treatment; thus, the demonstrated manifestations - namely eczematous dermatitis effecting less than five percent of the Veteran's total skin area calling for only topical treatment - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's eczematous dermatitis, and referral for consideration of an extra-schedular evaluation is not warranted. Finally, the Veteran has not claimed that he is rendered unemployable by virtue of his eczematous dermatitis, and the Board finds that the record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus no discussion or remand of such a claim in warranted ORDER A higher (compensable) initial evaluation for eczematous dermatitis disability is denied. ____________________________________________ MICHELLE KANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs