Citation Nr: 1340996 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-24 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to a disability rating in excess of 10 percent for the Veteran's post inflammatory eczematous disease with hyperpigmentations prior to June 26, 2013. 4. Entitlement to a disability rating in excess of 30 percent for the Veteran's post inflammatory eczematous disease with hyperpigmentations on and after June 26, 2013. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision, denying service connection for a back condition, and a May 2010 rating decision granting service connection for post inflammatory eczematous disease with hyperpigmentations with an evaluation of 0 percent. The Veteran was granted a 10 percent evaluation in a January 2012 rating decision, and a 30 percent evaluation in an August 2013 rating decision. The January 2012 rating decision granted the 10 percent evaluation with an effective date of December 15, 2009, the date of the Veteran's original claim for service connection. The August 2013 rating decision granted the 30 percent evaluation with an effective date of June 26, 2013, the date of the Veteran's most recent VA examination for his skin disability. The Board notes, with respect to increased ratings, that with a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. The Veteran has not been afforded the maximum available benefit, and consequently the Board will proceed to evaluate whether he is entitled to a higher rating. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS system to ensure review of the totality of the evidence. The Board further notes that the Veteran filed a formal claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In a recent case, the Court held that a claim for TDIU can be inferred as part of a claim for an increased rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). This case differs, however, because a formal claim for TDIU was considered and denied by the RO in August 2011 and January 2012 rating decisions. The Veteran did not disagree with these determinations. At the Veteran's June 2013 Informal DRO conference he stated that his skin condition negatively impacted his work as the constant itching imposes a sleep impairment. However, nothing in Rice suggests that the finality of this decision can be overcome by subsequent allegations that the Veteran's work is impacted by the service-connected disability, as opposed to rendering the Veteran unemployable. Therefore, in the circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim. The reopened claim of service connection for a back disability 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. FINDINGS OF FACT 1. An August 2008 rating decision most recently denied entitlement to service connection for a back disorder because it was determined that new and material evidence had not been received to reopen the previously denied claim. 2. Evidence regarding the Veteran's back disorder associated with the claims file since the August 2008 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. Prior to June 26, 2013, the Veteran's service-connected skin disability affected between 5 to 20 percent of the Veteran's entire body, 0 percent of exposed areas, and did not require the use of systemic therapy or other immunosuppressive drugs. 4. As of June 26, 2013, the Veteran's service-connected skin disability affected between 20 to 40 percent of the Veteran's entire body, 0 percent of exposed areas , and did not require the use of systemic therapy or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. The August 2008 rating decision that most recently declined to reopen the service connection claim for a back disability is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1103 (2013). 2. The evidence received since the August 2008 denial is new and material; and the claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for an increased disability rating in excess of 10 percent for the Veteran's skin disability have not been met prior to June 26, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2013). 4. The criteria for an increased disability rating in excess of 30 percent for the Veteran's skin disability have not been met for the period on and after June 26, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). As the claim of entitlement to service connection for a back disability is being reopened, and remanded for further development, any errors with respect to the duties to notify or assist are harmless. The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his skin disability. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because service connection has already been granted, VA's notice obligations with respect to the issue of entitlement to a higher initial evaluation for the Veteran's skin condition are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, the Board notes that the RO provided the Veteran with adequate notice in a January 2010 letter. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated all available VA medical records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security medical records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an 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). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded a VA examination for his skin condition in April 2010, December 2011, and June 2013. The Veteran alleged that his December 2011 VA skin examination was inadequate, and as a result was afforded another examination in June 2013. The Veteran has not argued, and the record does not reflect, that the most recent examination was inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner considered the Veteran's relevant medical history and provided well-reasoned and adequately supported opinions. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Claim to Reopen Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2013). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Veteran's claim for service connection for a back condition was originally denied in an October 2005 rating decision because the evidence failed to show that the Veteran had a currently diagnosed back disability. An August 2008 rating decision again denied the Veteran's claim for failure to submit new and material evidence. The RO subsequently reopened the claim in an August 2011 rating decision, however, the Board must still determine if new and material evidence has been submitted. In this regard, the Board finds that the Veteran's more detailed lay statements describing his back problems, as well as medical evidence diagnosing spinal stenosis and degenerative disc disease, constitute new and material evidence. 38 C.F.R. § 3.156(a). As a result, the Board reopens the claim. The Board further finds, however, that additional development is necessary before this claim can be considered on the merits. III. Increased Rating for Skin Condition The Veteran is seeking an increased rating for his service-connected post inflammatory eczematous disease with hyperpigmentations. The Veteran was originally service connected for this condition with a 0 percent evaluation in a May 2010 rating decision, which the Veteran timely appealed. During the appellate period, the RO has increased the evaluation for this condition twice. In January 2012, the RO assigned a 10 percent rating, effective back to the date of the Veteran's original claim on December 15, 2009. In August 2013, the RO assigned a 30 percent evaluation effective June 26, 2013. The Board must now determine whether the Veteran is entitled to an evaluation of greater than 10 percent from December 15, 2009 to June 25, 2013, and whether he is entitled to an evaluation of greater than 30 percent from June 26, 2013 to the present. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. The Veteran's skin condition is currently rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. Under this DC, a 10 percent evaluation is appropriate when between 5 and 20 percent of the entire body, or between 5 and 20 percent of the exposed areas are affected; or, intermittent systemic therapy or other immunosuppressive drugs are required for a total duration of less than six weeks during the last 12-month period. A 30 percent evaluation is warranted when 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected; or intermittent systemic therapy or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation, the maximum evaluation available under this DC, is appropriate when more than 40 percent of the entire body, or more than 40 percent of exposed areas are affected; or constant or near constant systemic therapy or other immunosuppressive drugs are required during the past 12-month period. With respect to the period between December 15, 2009 and June 26, 2013, the evidence does not support a finding that the criteria for a rating in excess of 10 percent have been met. At the Veteran's April 9, 2010 VA examination, the examiner noted affected areas on the anterior thighs and up over the knees, amounting to no more than 4 percent of the total body surface. The examiner made no reference to systemic therapy or the use of other immunosuppressive drugs. The Veteran challenged the adequacy of the April 9, 2010 examination, contending that the examiner did not look at his back and other areas of his body. At the Veteran's December 22, 2011 VA examination, the examiner noted the affected areas to cover between 5 to 20 percent of the total body, and 0 percent of the exposed areas. The examiner noted that the Veteran was using topical medications constantly or near-constantly, but the Veteran was not using systemic therapy or other immunosuppressive drugs. The record does not contain any other objective evidence that may be used to evaluate the Veteran's disability with respect to the rating criteria during this time period. Given the findings of both the April 9, 2010 and December 22, 2011 VA examinations, the evidence does not support an evaluation in excess of 10 percent for the time period between December 15, 2009 and June 25, 2013. A 10 percent evaluation is appropriate for this period. With respect to the period beginning on June 26, 2013, the evidence does not support a finding that the criteria for a rating in excess of 30 percent have been met. At the Veterans June 26, 2013 VA examination, the examiner noted that 20 to 40 percent of the entire body was affected, and that 0 percent of exposed areas were affected. The examiner noted that the Veteran was using topical medication constantly or near-constantly, but there is no mention of systemic therapy or immunosuppressive drugs. These findings are within the criteria for a 30 percent evaluation. No other objective evidence is available for this time period which could be used to evaluate the Veteran's disability with respect to the rating criteria. As a result, the Board finds that the evidence supports a finding that a 30 percent evaluation is appropriate for the period beginning on June 26, 2013. ORDER The previously denied claim of entitlement to service connection for a back disorder is reopened; to this extent only, the appeal is granted. Entitlement to a disability rating in excess of 10 percent for the Veteran's post inflammatory eczematous disease with hyperpigmentations prior to June 26, 2013 is denied. Entitlement to a disability rating in excess of 30 percent for the Veteran's post inflammatory eczematous disease with hyperpigmentations on and after June 26, 2013 is denied. REMAND The Veteran is seeking service connection for a back disorder. He essentially contends that he has back pain that began on active duty, stemming from an in-service injury suffered in 1978. In this regard, the Board notes that the Veteran has current diagnoses of spinal stenosis and degenerative disc disease. Service treatment records indicate that the Veteran was treated for back pain in January 1978 from wearing a pack during training. The Veteran's separation examination, however, states that the Veteran had "no current medical problems," and that he specifically denied having any recurrent back pain. The Veteran originally filed a claim for service connection for a back disability in May 1984, before subsequently withdrawing his claim in November 1984. Before withdrawing his claim, the Veteran attended a May 1984 VA examination . The Veteran complained of back pain that started six years ago while in service, approximately 1978, which is consistent with service treatment records. The Veteran complained of daily pain, and specified that whenever he bent over to lift things he would get sharp pains in his upper back. Tenderness was noted along the thoracic spine. The lumbar spine was normal upon examination. The Veteran specified that the pain was in his upper back. He denied any significant pain in the low back over the lumbar spine area. X-rays were all normal. However, the examiner did note a slight narrowing of the intervertebral space between the L5-S1 vertebrae. The Veteran has explained that he withdrew his 1984 claim because he wanted to the join the Marine Corps Reserves. The first specific mention of low back pain is in treatment records from July 2007, when chronic low back pain is noted. A February 2011 MRI of the lumbar spine found congenital canal stenosis secondary to congenitally short pedicles. Degenerative changes were noted in the L4-L5 discs. The record reflects that the Veteran underwent an examination in August 2011, wherein the examiner concluded that it was unlikely that the Veteran's current diagnosis of spine stenosis was related to his complaint of upper back pain in service. The examiner opined that the Veteran's "current spinal stenosis is likely due to a combination of aging, the heavy physical labor done after leaving the service and the congenital narrowing noted on MRI scan." In addition, the examiner noted that his current symptoms are localized to the lower back, while his in-service symptoms where localized to the upper back, and there are no current diagnoses or findings with respect to the upper back. A November 2011 examiner echoed the August 2011 examiner, stating that was unlikely that the Veteran's low back pain and stenosis was related to his upper back pain in service. The examiner concluded that it was "less likely as not that his service and reported injuries that occurred over 35 years ago have lead to his current condition." With respect to the in-service injury, the examiner noted that "the activities reported while in service were not of the type or force that would lead to spinal stenosis. [T]he condition is more likely than not due to a combination of time, age, heavy labor after service and the congenital narrowing of the lumbar pedicles." As noted, the Veteran was examined in May 1984, approximately seven months from separation, at which time it was noted that x-rays showed a slight narrowing of the intervertebral space between the L5-S1 vertebrae. Although neither the August 2011 or November 2011 VA examiners found his current degenerative disc disease or spinal stenosis related to service, the Board is concerned that neither discussed the significance, if any, of this clinical finding noted shortly following separation. Additionally, in light of the findings that the Veteran has a congenital low back condition, the Board finds that the examiner should also discuss whether the Veteran currently has a congenital disease or a congenital defect of the back and the etiology of such disease or defect. Accordingly, this case is remanded for the following action: 1. Please return the claims file to the examiner who conducted the November 2011 VA examination. If unavailable, please forward the file to another appropriate examiner. After reviewing the claims file, the examiner should: a) diagnose all back disabilities shown to exist; b) indicate which, if any, of these disabilities constitute a congenital disease, congenital defect, or an acquired disease or injury; (The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.) c) If the examiner determines that any low back condition is a congenital defect, opine whether the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect; d) If the examiner determines that the Veteran's low back condition is a congenital disease, opine whether the disability clearly and unmistakably existed prior to his active service and clearly and unmistakably underwent no permanent increase in severity as a result of active service; e) For any other low back disability the examiner determines is not congenital in nature and/or did not preexist service, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it originated during active duty or is in any other way causally related to his active duty service; f) provide detailed rationale, with specific references to the record, for the opinions provided. The examiner should specifically discuss the significance, if any, of the May 1984 finding of mild narrowing of the intervertebral space between L5-S1. 2. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the statement of the case (SOC) was issued. In the event that the claim is not resolved to the satisfaction of the Veteran, he should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs