Citation Nr: 1339333 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-43 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) for nummular eczema in excess of 10 percent from June 29, 2009. 2. Entitlement to an effective date earlier than June 29, 2009 for a 10 percent evaluation for nummular eczema. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from May 1998 to March 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted an increased disability rating of 10 percent for service-connected nummular eczema, effective June 29, 2009. The Veteran filed a timely notice of disagreement with the February 2010 rating decision in regard to both the 10 percent disability rating and the effective date of that rating. In a subsequent statement of the case dated August 2010, the RO continued the 10 percent evaluation for service-connected nummular eczema, and denied an earlier effective date prior to June 29, 2009. The Veteran filed a substantive appeal in September 2010. The issues on appeal were previously remanded by the Board in February 2013 in order to allow the agency of original jurisdiction to review evidence not previously considered. This was accomplished, and the claims were readjudicated in a June 2013 supplemental statement of the case. For this reason, the Board concludes that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. For the entire increased rating period, the Veteran's nummular eczema did not involve 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, nor was systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more during the past 12-month period. 2. The claim for an increased disability rating for the service-connected nummular eczema was received on August 20, 2009. 3. It is not factually ascertainable that an increase in disability of service-connected nummular eczema occurred prior to June 29, 2009. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for nummular eczema from June 29, 2009 have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.21, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2013). 2. The criteria for an effective date prior to June 29, 2009 for a 10 percent rating for a nummular eczema disability have not been met. 38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(o)(2) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In a September 2009 letter, VA informed the Veteran of the evidence necessary to substantiate the claims currently on appeal, informed the Veteran of evidence VA would reasonably seek to obtain, and informed the Veteran of the information and evidence for which he was responsible. The September 2009 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman, 19 Vet. App. 473. Service treatment records, private treatment records, and VA examinations have been associated with the claims file. Further, the Veteran was afforded VA examinations to address the service-connected nummular eczema in October 2009, June 2012, and March 2013. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; address the relevant rating criteria; and contain a discussion of any effects of the Veteran's service-connected nummular eczema on his occupational and daily activities. Moreover, the Board finds that the duty to assist requires conducting a VA compensation examination of the Veteran's nummular eczema during a flare-up. In Ardison v. Brown, 6 Vet. App. 405 (1994), the Court held that VA was obligated to evaluate tinea pedis, a skin condition, while in an active stage of the disease in order to fulfill the duty to assist. Here, the Veteran contends that his nummular eczema is worse during summer months. The Board notes that one of the VA examinations was conducted in the summer (June 2012). Additionally, the Veteran notified the VA examiner that he had a mild flare-up the morning of the VA examination and that he expected the itching to resolve within one week. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) 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 relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. While a veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Increased Rating for Nummular Eczema The Veteran contends that he experiences sensitivity of the skin, itching, and embarrassment associated with his nummular eczema. In his notice of disagreement dated March 2010, the Veteran states that his disability evaluation should be increased to 30 percent and should be effective March 1999. The Veteran's nummular eczema is currently rated as 10 percent disabling pursuant to the provisions of Diagnostic Code 7806 (Dermatitis or Eczema). 38 C.F.R. § 4.118. Diagnostic Code 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 (0 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. After review of all the evidence of record, both lay and medical, the Board finds that, for the entire increased rating period, the Veteran's nummular eczema does not warrant a higher 30 percent evaluation under Diagnostic Code 7806 because it does not involve 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, nor was systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of six weeks or more during any 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. In October 2009, the Veteran underwent a VA medical examination. The Veteran reported receiving treatment for the eczema in the last 12 months. Specifically, the Veteran stated that he had a flare-up of eczema in August 2009 and stated that he was treated with oatmeal baths and Medrol dose-pack (a corticosteroid hormone). The Veteran denied any current treatment. Upon examination, the Veteran's scalp, face, neck, and chest were clear. Mild xerosis was noted on the abdomen and follicular papule on the back. No disfigurement or functional impairment was noted by the examiner. The examiner reported that less than 1 percent of body surface area was involved in unexposed areas and zero percent in exposed areas. In a June 2012 VA examination, the Veteran reported that he had recurrent problems with itching and spots on arms, back, upper torso (never head, neck, face) and skin sensitivity. The examiner conducted a physical examination and noted that the Veteran's skin condition affected less than 5 percent of the total body area and less than 5 percent of exposed area (face, neck, and hands). For these reasons, the Board finds that nummular eczema does not affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas as is required for a 30 percent rating under Diagnostic Code 7806. In the most recent March 2013 VA examination report, the VA examiner conducted a physical examination and noted that the Veteran had an area of small 1mm follicular hyperplasia lesions behind the left ear; however, the Veteran's skin condition affected less than 5 percent of the total body area and less than 5 percent of exposed area (face, neck, and hands). For these reasons, the Board finds that the Veteran's nummular eczema does not more nearly approximate a 30 percent disability rating under Diagnostic Code 7806 for any period. In reaching this conclusion, the Board has also considered the Veteran's reports of numerous spots on his arms, back and upper torso; however, the more specifically observed and measured medical evidence of record reflects that the skin disorder does not involve 20 to 40 percent of the affected, as contemplated for a 30 percent rating area under Diagnostic Code 7806. 38 C.F.R. § 4.118. Moreover, the Veteran has not alleged that the skin disorder affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. Additionally, the Board finds that a higher 30 percent evaluation is not warranted under Diagnostic Code 7806 because the Veteran's nummular eczema does not involve treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Pursuant to a Take Care Clinic report dated June 29, 2009, the Veteran sought treatment for an itching rash located on his arms. On June 29, 2009, the Veteran was prescribed a corticosteroid (Prednisode, 1 tablet a day for 5 days) and a anti-histamine (Loratidine 15 tablets), both non-refillable. As noted above, in the October 2009 VA examination, the Veteran reported receiving treatment in August 2009 for an eczema flare-up where he underwent treatment involving oatmeal baths and Medrol dose-pack (a corticosteroid hormone). The Veteran denied any current treatment during the October 2009 VA evaluation. During the June 2012 VA examination, the Veteran brought a note from Dr. S. dated June 11, 2012, stating that he had been treated on that day with Medrol (dose-pack 7-day), an oral steroid for non-specific dermatitis. The Board finds that this evidence demonstrates that the Veteran has periodically been prescribed corticosteroids for a period of 5 to 7 days in a 12 month period. For example, in 2009, the Veteran was prescribed a corticosteroid for a total of 12 days (i.e., five days in June 2009 and seven days in August 2009); however, the criteria for a 30 percent evaluation describes at least six weeks of systemic therapy in a 12 month period (emphasis added). See 38 C.F.R. § 4.118, Diagnostic Code 7806. In the most recent March 2013 VA examination report, the VA examiner noted that the Veteran had used antihistamines for six weeks or more, but not constantly. It was also noted that the Veteran used topical corticosteroids and oatmeal baths for six weeks or more, but not constantly. The March 2013 VA examiner did not note that the Veteran used at least six weeks of systemic therapy such as corticosteroids or other immunosuppressive drugs. In sum, the Board finds that the Veteran's nummular eczema does not warrant a higher 30 percent rating under Diagnostic Code 7806 for any period. The Veteran's skin condition does not affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Moreover, the Veteran has not been treated with systemic therapy such as corticosteroids for a total duration of six weeks or more, but not constantly, during any 12-month period. Accordingly, a 30 percent evaluation for nummular eczema is not warranted for the entire increased rating period. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board has considered whether a referral for an extraschedular evaluation is warranted for nummular eczema. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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 claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by, and treatment required by, the Veteran's nummular eczema is specifically contemplated by the schedular rating criteria, and no referral for extraschedular adjudication is required. The Veteran reported itching, skin sensitivity, and embarrassment associated with the nummular eczema. He stated that he is more sensitive in the warmer months and must wear long sleeve shirts when going outside. The rating criteria contemplate these impairments, to include flare-ups of the disability, treatment (such as corticosteroids or other immunosuppressive drugs), and the length of treatment. As the rating criteria are adequate to rate the Veteran's disability, the Board finds that referral for consideration of an extraschedular rating under 38 C.F.R. 3.321(b)(1) is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with nummular eczema, the Board finds that the criteria for submission for a referral for an assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Court has held that total disability rating based on individual unemployability (TDIU) is a potential element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). The Veteran has not claimed or raised TDIU, and there is no evidence in the record indicating that the Veteran is unable to obtain or maintain substantially gainful employment. According to the June 2012 VA examiner, the Veteran's skin condition does not impact his ability to work; therefore, further consideration of TDIU is not warranted. Earlier Effective Date The Veteran seeks an effective date prior to June 29, 2009 for the assignment of a 10 percent evaluation for nummular eczema. The Veteran contends that he has had this condition since discharge from service in March 1999. In a prior March 2002 rating decision, the RO granted service connection for nummular eczema with an evaluation of 0 percent effective March 12, 1999. The Veteran filed a notice of disagreement as to the rating in September 2002. The RO issued a statement of the case in May 2003 continuing the noncompensable rating for nummular eczema. The Veteran did not file a substantive appeal (VA form 9). A timely substantive appeal must be filed after a statement of the case has been furnished. See 38 C.F.R. § 20.200 (2013); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required and has no authority to decide the claim). Because a substantive appeal was not received, the Veteran did not perfect an appeal to the March 2002 rating decision, and the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). As the prior rating decision became final, the effective date in this case would be based on the date of receipt of the Veteran's new claim for an increased rating, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o); See VAOPGCPREC 12-98; Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). Because the Veteran filed the increased rating claim on August 20, 2009, the Board must consider the evidence concerning this disability dating back to August 20, 2008, one year prior. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); See also Hazan, 10 Vet. App. at 521. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2013). The Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart, 21 Vet. App. 505. The Board has therefore considered whether it is factually ascertainable that the Veteran's disability (nummular eczema) had increased within one year of receipt of his claim. See Gaston, 605 F.3d 979. The Veteran filed his claim for an increased rating for nummular eczema on August 20, 2009. In a February 2010 rating decision, the RO found that it was factually ascertainable that the Veteran's disability had increased on June 29, 2009, within one year of receipt of the Veteran's August 20, 2009 claim. This determination was based upon private treatment records from the Take Care Clinic and a prescription for a corticosteroid dated June 29, 2009, which indicated an increase in the Veteran's disability. Upon review of all the evidence, both lay and medical, the Board finds that the record does not demonstrate that evidence was received within one year of receipt of the Veteran's claim which would make it factually ascertainable that an increase in disability had occurred between August 20, 2008 and June 29, 2009; therefore, the Board finds that June 29, 2009 is the earliest date in which it was factually ascertainable that an increase in disability had occurred. The Board further finds that there are no other documents of record that could be construed as a claim for an increased rating for nummular eczema prior to August 20, 2009. Accordingly, entitlement to an effective date earlier than June 29, 2009 for a 10 percent evaluation for nummular eczema must be denied. ORDER An increased disability rating for nummular eczema in excess of 10 percent is denied. An effective date earlier than June 29, 2009 for a 10 percent rating for nummular eczema is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs