Citation Nr: 1340555 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-28 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an increased rating for service-connected dermatitis, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 18, 2002 to July 29, 2002; from December 2003 to March 2005; and from May 2007 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted a 10 percent rating for the Veteran's dermatitis. The Board notes that, in addition to the paper claim file, there is a Virtual VA electronic claim file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision. FINDING OF FACT The Veteran's service-connected dermatitis is manifested by a rash without the requirement of at least six weeks or more of systemic therapy such as corticosteroids or other immunosuppressive drugs, and the medical evidence of record does not reflect that the Veteran's dermatitis covers at least 20 percent of the entire body or at least than 20 percent of exposed areas affected. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in April 2009, prior to the November 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). The April 2009 letter informed the Veteran that in order to establish a higher rating, the evidence would need to show that his dermatitis had increased in severity. He was informed of the type of evidence that could be submitted to support his claim. The April 2009 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, the duty to notify has been satisfied. The Board also finds that VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. With respect to an increased rating claim, the duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See 38 C.F.R. § 3.327(a) (2013); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was afforded VA examinations in June 2008, May 2009, and July 2010, and VA medical opinions were obtained in September 2010 and October 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations are adequate as they are predicated on a review of medical records and the examiners fully addressed the rating criteria that are relevant to rating the disability at issue here, and the opinions are adequate as the individuals providing the opinions were familiar with the evidence of record and fully addressed the rating criteria. There is adequate medical evidence of record to make a determination in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted. See 38 C.F.R. § 3.159 (c)(4) (2013); see also VAOPGCPREC 11-95 (April 7, 1995). Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duty to assist has been met. Analysis The Veteran essentially contends that his dermatitis disability is more disabling than contemplated by the current 10 percent rating. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2013). While the Veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See 38 C.F.R. § 4.1 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under the rating criteria for dermatitis, a 30 percent rating will be assigned when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or there must have been systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during a 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). For a 60 percent rating, more than 40 percent of the entire body or more than 40 percent of exposed areas must be affected, or there must have been constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Id. VA treatment and pharmacy records from June 2008 to March 2010 indicate that the Veteran was treated with fluconazole, econazole nitrate cream, clobetasol propionate cream, triamcinolone acetonide ointment, tacrolimus topical ointment, terbinafine, and spectazole cream. The treatment records describe the Veteran's lesions as being "migratory and diffuse," as being located on the chest, back and groin, and noting that steroid injections, creams/ointments, and oral steroids provide only temporary relief for the rash. The Veteran was afforded VA examinations in June 2008, May 2009, and July 2010. In the history of present illness, the June 2008 examiner noted that the Veteran had been treated with cortical steroids and antibiotics over the last twelve months. The examination report mentioned a rash on the top of the feet and diagnosed the Veteran with nonspecific dermatitis. In the May 2009 examination, the diagnosis of dermatitis remained unchanged. The Veteran reported that he had had a rash for more than five years, which "occurs all over his body only sparing his face and scalp" and "occurs intermittently in different places." The examiner noted that the Veteran "had been treated with multiple corticosteroids, oral antibiotics, oral steroids, and other medications that resolve the condition." The examiner noted in the history of present illness that the Veteran "has functional impairment of difficulty functioning when the rash is weepy." The examiner noted that there were no scars. Physical examination revealed a patch on his left wrist on the volar surface measuring 5 cm by 5 cm, a 4 cm by 5 cm skin thickening erythema on the top of the right foot on the dorsal aspect, and two light patches with mild erythema on the lower back. The examiner noted that the patches on the left wrist and right foot were disfiguring, but that there were no scars. He observed that the left wrist patch was in an exposed area which represented less than two percent of the entire body and approximately five percent of the total exposed area. The July 2010 examiner took a medical history which also indicated that the Veteran had "random flare-ups" of his dermatitis, and that "it might be dormant for a month or two where it is almost gone," but not completely. He described the areas affected as his arms or legs, back and face, but that it "has been all over his body in different areas." Specifically, flare-ups were on the anterior feet, a few inches on the back of the calves, the lower half of the back, and backs of the arms. He stated that when it is the least severe, it is in a couple of areas and "quite small," and when it is the most severe, it is on his entire body. The Veteran reiterated that his treatments over the years included steroid injections, steroid creams, antifungals, antibiotics, and antivirals, including steroid cream in the past year. He stated that they did not really help. Physical examination indicated an "erythematous region on the right anterior foot approximately 3 inches by 1 inch and a small cluster of crusting which was about 0.25 inch by 0.5 inch" and "erythematous papules with scabbing about 3 inches in diameter over the left lower back and a little bit higher in the mid back region about a 2 inch in diameter area with erythemous papules." The examiner noted that the affected surface areas upon examination, a day when it was less severe, "include[ed] less than 5% total surface area and 0% exposed surface area." The examiner noted that the Veteran was able to do his usual work, and although he changed jobs, it was not because of his dermatitis. The September 2010 VA medical opinion noted that the Veteran had submitted photographs of his skin during the July 2010 examination. The examiner stated that the photographs were taken intermittently during the last two years rather than at one time. She opined that "for the average flare-up his total body surface area percentage would be at least as likely as not 5% and total exposed surface area less than 5%. There are times with his more severe flare-ups that it could be 10-15% of total surface area but still appears to be less than 5% of exposed surface area." She also opined that "I would say that it is at least as likely as not, 50% or greater probability, that the numbers above are correct in terms of his dermatitis flare-ups." In doing so, the examiner explained that she was making estimations of the Veteran's flare ups, but did note that the Veteran said that the photographs submitted were not all taken at the same time. As the VA examiner did not have the claims file at the time the September 2010 opinion was rendered, the file was provided in October 2010. The VA examiner indicated that that the diagnosis and opinions were unchanged from the September 2010 opinion, taking into account the subjective history and photographs submitted. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the Veteran's own reports as to the severity of his skin disorder, and recognizes that he is clearly competent to describe the symptoms of a skin rash, as he did during the VA examinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg"). The Board acknowledges the Veteran's statement in his November 2013 appellant brief that his dermatitis is not well controlled and has spread to other parts of his body. However, the objective medical findings of the competent July 2010 VA examiner are ultimately found to be more probative. The examiner provided a well-reasoned opinion, considered the contents of the claims file (including the photographs provided by the Veteran), conducted a physical examination, and obtained a relevant medical history. The Board sympathizes with the Veteran's difficulties, but the most probative evidence establishes that his dermatitis does not affect at least 20 percent of either his body or his exposed areas. Based on the evidence of record, the Veteran's dermatitis is not more disabling than the current 10 percent rating. The evidence of record does not reflect that the Veteran's dermatitis affects at least 20 percent of the his entire body or exposed area during the time period relevant to this appeal. Moreover, although the Veteran has used corticosteroid treatment, his VA treatment records do not reflect that such treatment was for a duration of six weeks or more during the relevant time period of this appeal, nor has he contended that such treatment lasted for that duration. The Board is cognizant that the Veteran's representative pointed to a prolonged period of treatment provided during a period of active duty in 2007 to 2008 in support of the assignment of a rating in excess of 10 percent. However, while the Board has considered his service treatment records, in light of the VA examination reports and post-service VA treatment records, the Board finds that the preponderance of the evidence remains against granting an evaluation in excess of 10 percent under the applicable criteria. The Board has reviewed the remaining diagnostic codes relating to skin disabilities but finds that they are inapplicable in this case. See 38 C.F.R. § 4.118 (2013). Specifically, the Board notes that the Veteran has not been noted as having scars due to his dermatitis. Therefore, the Board finds the Veteran is most appropriately evaluated under Diagnostic Code 7806, as opposed to any of the criteria for evaluating scars. Based upon the guidance of the U.S. Court of Appeals in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, the Veteran's symptoms do not warrant staged ratings as his disability has never been more than 10 percent disabling during the period under consideration. Other Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected dermatitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's dermatitis with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims 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 disabilities render him totally unemployable. 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. ORDER Entitlement to an increased rating for dermatitis, currently rated as 10 percent disabling, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs