Citation Nr: 1338492	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  12-27 303	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for basal cell carcinoma.

2.  Entitlement to a compensable rating (in excess of 0 percent) for furunculosis-folliculitis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel




INTRODUCTION

The Veteran served on active duty from September 1974 to October 1980.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for basal cell carcinoma, and continued a 0 percent rating for furunculosis-folliculitis.

The issue of entitlement to service connection for basal cell carcinoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  The Veteran is employed and has not asserted that his is unable to work because of his service-connected disabilities, nor does the record reflect that he cannot work because of his service-connected disabilities.  Accordingly, the Board concludes that a claim for TDIU has not been raised.  The Veteran certainly may raise this claim in the future, should he choose to do so.


FINDING OF FACT

The Veteran's service-connected furunculosis-folliculitis currently does not affect 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.


CONCLUSION OF LAW

The criteria for an increased rating in excess of 0 percent for furunculosis-folliculitis were not met at any time during the appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code 7806 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

I.  The Duties to Notify and Assist

In a claim for increase, the VCAA notice requirements are 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.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant 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, 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, if notice was not provided prior to initially adjudicating the claim, or if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this case, a VCAA notice requirement was initially sent to the Veteran in a December 2011 letter.  This VCAA letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties in obtaining evidence.  Thereafter, the case was readjudicated by way of a statement of the case (SOC) in August 2012.  So, he has received all required notice concerning his claim, and it has been reconsidered since providing all required notice.

VA also has a duty to assist the Veteran in the development of his claim.  This duty includes assisting the Veteran in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private), and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The claims file contains service treatment records (STRs), VA medical evidence, private medical evidence, and the Veteran's lay statements.  The Veteran has been medically evaluated in conjunction with this claim.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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).

Furthermore, the Veteran was provided a VA examination.  The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. 
§ 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Thus, the duties to notify and assist have been met.
II.  Claim for a Higher Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. Part 4 (2013).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2013). 

In addition, if the Veteran has been diagnosed as having a specific condition and that disability is not listed in the Rating Schedule, the diagnosed condition will be evaluated by analogy to a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous.  38 C.F.R. § 4.20 (2013). 

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2013).  The Veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14 (2013).  Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping.  See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 
Further, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

II.  Furunculosis-Folliculitis Analysis

The Veteran's service-connected furunculosis-folliculitis is currently rated as 0 percent disabling, effective from April, 1981, under Diagnostic Code 7806, which contemplates dermatitis or eczema.  38 C.F.R. §§ 3.321, 4.118 (2013).

As relevant to dermatitis or eczema, under Diagnostic Code 7806, dermatitis or eczema that covers less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period warrants a 0 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2013).
Dermatitis or eczema that covers 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 warrants a 10 percent rating.  Id.

Dermatitis or eczema that covers 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 warrants a 30 percent rating.  Id.

As relevant to dermatitis or eczema, under Diagnostic Code 7806, 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.
In this case, the Veteran brought a claim for a higher disability rating for furunculosis-folliculitis in August 2011.  The January 2012 rating decision denied a disability rating in excess of 0 percent.  On his February 2012 Notice of Disagreement, the Veteran contended that he should receive an evaluation higher than 0 percent for furunculosis-folliculitis.  An August 2012 Statement of the Case continued the disability rating of 0 percent.  In September 2012, the Veteran perfected his appeal with a VA Form 9.  

A review of the private treatment records from Dr. L., dated June 2000 to March 2011, from Dr. G., dated from November 2010 to April 2011, and from Dr. K., dated from November 2010 to January 2011, provided evidence of continuing treatment for furunculosis-folliculitis.  

In a January 2012 VA Compensation and Pension (C&P) skin examination report, the examiner noted that the Veteran was diagnosed with furunculosis-folliculitis in 1975.

The C&P examination noted that the Veteran's skin conditions do not cause scarring or disfigurement of the head, face, or neck.  The Veteran does not have any benign or malignant skin neoplasms (including malignant melanoma).  Additionally, he does not have any systemic manifestations due to any skin diseases, such as fever, weight loss, or hypoproteinemia, associated with skin conditions.

Additionally, the C&P examination noted that the Veteran has not been treated with oral or topical medications in the past 12 months for any skin condition.  The Veteran has not experienced any debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis.

During the January 2012 C&P examination, the VA examiner noted that the Veteran did not have any of the visible skin conditions listed on the Disability Benefits Questionnaire.  The Veteran does not have a benign or malignant neoplasm or metastases related to any of the diagnoses in the Diagnosis section of the C&P examination.  The Veteran does not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to any conditions listed in the Diagnosis section of the C&P examination.

Finally, the VA examiner noted that the Veteran's skin conditions do not impact his ability to work.

On review, the Board finds that a rating in excess of 0 percent is not warranted under Diagnostic Code 7806.  As indicated the January 2012 VA examiner determined that Veteran's furunculosis-folliculitis does not cover 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.  No intermittent systemic therapy has been prescribed such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12 month period.  As such, a compensable rating is not warranted under Diagnostic Code 7806.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2013).

The Board acknowledges that the Veteran is competent to report his observable furunculosis-folliculitis symptoms, such as itchy, dry, or thickened skin.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his furunculosis-folliculitis.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds the medical evidence of record to be highly probative as to the current nature and severity of the Veteran's furunculosis-folliculitis.  The reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria.  Thus, although the Veteran's competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b)(1) (2013).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular rating in this case is adequate.  The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected furunculosis-folliculitis which is primarily productive of itchy, dry, or thickened skin.  See Thun, 22 Vet. App. at 115.  When comparing the Veteran's furunculosis-folliculitis symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the 0 percent rating assigned herein and he does not have symptoms associated with this disability that have been unaccounted for by the schedular rating assigned herein.  See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013).  Accordingly, a comparison of the Veteran's symptoms resulting from furunculosis-folliculitis with the pertinent schedular criteria does not show that his service-connected disability presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b) (2013).

Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's furunculosis-folliculitis.  Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.

Based on the foregoing, the Board concludes that a compensable rating (in excess of 0 percent) is not warranted for the Veteran's service-connected furunculosis-folliculitis.  No staged ratings are warranted.

ORDER

Entitlement to a compensable rating (in excess of 0 percent) for the service-connected furunculosis-folliculitis is denied.


REMAND

The Veteran asserts that he has basal cell carcinoma related to military service.  However, the etiology of such condition is unclear.

In a letter submitted in October 2012, the Veteran stated that up until he entered active duty in September 1974, he had no problems with any type of skin disorders.  Within a few years of his service, however, he experienced frequent occurrences of boils (furunculosis-folliculitis).  The Veteran's STRs note that he was first seen for a small furuncle of the neck in September 1975.  In June 1976, the Veteran was seen for a furuncle of the left axilla.  In July 1977, the Veteran had an incision and drainage performed on his fourth finger, which resolved the condition.  In July 1979, the Veteran had a perianal abscess which was excised and drained.  In August 1980, the Veteran had an abscess of the left mammary gland.  Additionally, the Veteran stated that he has not had this condition in the past few years and has had no treatment in the last 12 months for this condition.  

The Veteran stated that throughout his active duty time as a pilot in the Air Force, he was assigned to aerial refueling aircraft and flew many missions in which he was exposed to high-powered aircraft radars.

Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods, including on a presumptive basis for certain disabilities specific to radiation-exposed Veterans.  See 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2013); Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker, supra.  However, the Veteran's claim is based on his reported exposure to radar equipment, which is considered nonionizing radiation.  Indeed, the Court has taken judicial notice that radar equipment emits microwave-type nonionizing radiation that is not subject to review under the ionizing radiation statute and regulations.  Rucker, citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984.  Thus, because the Veteran's claims do not involve exposure to ionizing radiation, they instead come under the purview of the general service connection provisions.

VA afforded the Veteran a VA skin examination in January 2012.  This VA examination did not address the issue of entitlement to service connection for basal cell carcinoma.  Additionally, the VA examiner did not discuss the private medical evidence from Dr. L., Dr. K., or Dr. G., treating the Veteran for basal cell carcinoma.  

In a January 2012 rating decision, the Veteran's claim of entitlement to service connection for basal cell carcinoma was denied due to the lack of a relationship to military service.  

Even so, neither the January 2012 rating decision, nor the August 2012 Statement of the Case, address the Veteran's military occupation specialty (MOS) as an Air Force pilot, as shown on his DD 214 form.  

Since leaving active service in 1980, the Veteran stated that he had several additional occurrences of furunculosis-folliculitis, but also began to experience "a number of different skin conditions that have stayed with me through the present," including basal cell carcinoma.

As indicated, the Veteran underwent a VA skin examination in January 2012.  Although the basal cell carcinoma was addressed, the emphasis of the examination was placed on the increased rating claim for furunculosis-folliculitis.  Because basal cell carcinoma was not addressed, a new skin disease examination is required to determine if any basal cell carcinoma found is etiologically related to service.  See Colvin, supra; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Moreover, such lay evidence can support a later diagnosis by a competent medical professional.  The Court has held that once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

In light of the fact that the Veteran has provided private medical evidence of basal cell carcinoma treatment since leaving military service, competent and credible lay evidence of basal cell carcinoma symptoms, as well as continuity of symptomatology, the Board finds that a new examination is required to address these complaints to determine whether they are indicative of disabilities that developed while on active duty.

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, severity, as well as the etiology of his basal cell carcinoma.  The entire claims folder (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and reviewed by the examiner.  The examiner must note in his report that the claims file was reviewed.  All necessary tests should be performed and all findings should be reported in detail.

The examiner is asked to:

a. Indicate all skin disabilities currently shown, to include basal cell carcinoma;

b. For any skin disability diagnosed since the filing of this claim, determine whether it is at least as likely as not (50 percent or greater likelihood) that it is casually related to military service.

c. For any skin disability diagnosed since the filing of this claim, determine whether it is at least as likely as not (50 percent or greater likelihood) that it is caused or aggravated (chronically worsened) by the Veteran's service-connected furunculosis-folliculitis.

Any findings should be reconciled with the private medical evidence dated from June 2000 to the present, as well as the Veteran's October 2012 letter, and his MOS as an Air Force pilot.

A complete rationale for all opinions expressed should be provided, to include if the examiner determines an opinion cannot be provided without resorting to speculation.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an examiner's report that he or she cannot provide an opinion without resorting to speculation is inadequate unless the examiner provides a rationale for that statement).

2. Thereafter, the RO/AMC should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the RO/AMC should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

3. After completing any additional development deemed necessary, the RO/AMC should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.  If the issue remains denied, the Veteran and his representative must be provided a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs