Citation Nr: 1341971 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-11 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable evaluation for contact dermatitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from September 1980 to September 1983 and December 2003 to February 2005. She also had service in the Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which implemented the grant of service connection for contact dermatitis and assigned a noncompensable rating as of November 3, 2006, which was identified as the date of claim. It is noted that the RO received the veteran's claim on November 3, 2005. Appropriate corrective action should be taken. The Veteran continues to appeal for a higher rating. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDING OF FACT The Veteran's contact dermatitis affects less than 5 percent of the entire body and exposed areas and requires no more than topical therapy. CONCLUSION OF LAW The criteria for an initial compensable evaluation for contact dermatitis have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits. This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA should provide this notice prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, since service connection was granted and an initial rating was assigned for contact dermatitis in September 2009, the claim has been substantiated and VA has already satisfied its duty to notify the Veteran. Dingess, 19 Vet. App. at 490-491. The filing of a notice of disagreement (NOD) with the initial rating of a disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Id. Further, VA sent the Veteran a Statement of the Case as required under 38 U.S.C.A. § 7105(d)(1) (West 2002). VA also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. The RO associated the Veteran's service personnel records (SPRs), service treatment records (STRs), private treatment records, and VA treatment records with the claims file. The Veteran has not identified any evidence aside from what is already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty to obtain a medical examination and opinion when required. VA provided the Veteran medical examinations that addressed the current severity of her dermatitis in June 2009 and December 2011. The examinations are adequate, as the examiners considered relevant history and provided a detailed description of the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA provides an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds no further action is needed to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran contends she is entitled to an initial compensable evaluation for contact dermatitis that occurs intermittently on her face, neck, arm, legs, back, or buttocks. See October 2009 notice of disagreement (NOD); March 2012 substantive appeal. When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b) (2013); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, the claim will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Disability evaluations are governed by VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). The percentage ratings in the Rating Schedule represent the "average impairment in earning capacity" resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). When assigning a disability evaluation, the Board must consider the potential application of any applicable regulation governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During an evaluation, the symptomatology of a veteran's service-connected disability is compared with criteria set forth in the Rating Schedule and a percentage rating is assessed. 38 C.F.R., Part 4. If more than one percentage rating could apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating. 38 C.F.R. § 4.7. Evaluating the same disability under various diagnoses, using manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and evaluating the same manifestation under different diagnoses must be avoided. 38 C.F.R. § 4.14. If, however, the multiple diagnostic codes each require "distinct and separate" symptomatology that does not duplicate or overlap with the symptomatology required in the other diagnostic codes, a veteran may be assessed multiple ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A veteran may also be assessed multiple ratings if multiple distinct degrees of disability occurred during the relevant period. Hart v. Mansfield, 21 Vet. App. 505, 511-512 (2007); Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The Veteran's contact dermatitis is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under this diagnostic code, the following ratings apply. A noncompensable rating applies when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected and no more than topical therapy was required during the prior 12-month period. A 10 percent rating applies when 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 are affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the prior 12-month period. A 30 percent rating applies when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the prior 12-month period. A 60 percent rating applies 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 such as corticosteroids or other immunosuppressive drugs were required during the prior 12-month period. Id. The Veteran has appealed the initial rating assigned for contact dermatitis. Fenderson, 12 Vet. App. at 119. Based on the above criteria, the Board finds that the Veteran is not entitled to a compensable disability rating for her service-connected contact dermatitis. 38 C.F.R. § 4.118, Diagnostic Code 7806. The record does not indicate that at any time during the relevant period more than 5 percent of the Veteran's entire body or 5 percent of exposed areas were affected. VA treatment records do not contain evidence that the Veteran's contact dermatitis affected more than 5 percent of her entire body or of exposed areas. In November 2006, she reported a rash of itchy little red bumps from her head to her toe that came and went and appeared on her left arm, upper back, sides, legs, and face. Upon objective examination the next day, she had an apparent rash of scattered 1-millimeter raised red lesions that was primarily on her back and right arm, with some flat erythema elsewhere. In September 2011, she reported a recurrent rash and recent flare-up. Upon objective examination, she had pruritic red bumps on her upper arm and back. In June 2012, upon objective examination her skin showed no abnormal lesions, rashes, ulcers, or hair patterns. VA examinations also fail to establish that more than 5 percent of her entire body or exposed areas were affected. In June 2009, the Veteran underwent a VA compensation examination for hypertension when she had an active flare-up on her upper arm that she reported had been there for two weeks. Upon objective examination, she had a pruritic erythematous rash on her upper arm that was flat, with 1 wheal in its upper portion and no honey-crusted lesions, papules, or pustules. The erythema of the rash measured 11 centimeters by 7.5 centimeters at the longest and widest area. In December 2011, the Veteran underwent a VA compensation examination for skin diseases when she had an active rash. Upon objective examination, she had a hyperpigmented rash on her back between her scapulas that the VA examiner found covered less than 5 percent of her total body area and less than 5 percent of exposed areas. The Board acknowledges that the Veteran provided evidence pertaining to the size of her rashes. During the December 2011 VA examination, she reported that her rash involved areas exposed to the sun, including the face, neck, chin, and arm, but did not include the hands and head, and that it caused itching on the face, back, arm and chest, crusting on the chin and face, and redness on the back, shoulder, and chest. In her March 2012 substantive appeal, she stated that more than 5 percent of her body was affected at different times of the month. The Veteran is competent to report her symptoms and to estimate the size of her rash, as symptoms and the size of an apparent rash are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). However, while her description and estimate are credible, the Board gives her estimate little probative weight, as it is not supported by the objective findings in the record, including VA examiner findings during active flare-ups in June 2009 and December 2011. The Board also acknowledges the Veteran's statement in her March 2012 substantive appeal that she felt the VA examiner did not spend much time with her or touch her skin and did not thoroughly look her over. The Board finds, however, that the Veteran is not competent to provide an opinion regarding the adequacy of a medical examination, as the issue is complex and requires specialized knowledge and experience. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24 Vet. App. at 433. The competent medical evidence regarding the size of the Veteran's rash is therefore the most probative. Further, the record does not establish that the Veteran used a systemic corticosteroid or immunosuppressive medication to treat her contact dermatitis throughout the entire period on appeal. VA treatment records from November 2006 to February 2013 reveal that the Veteran was prescribed topical creams and a shampoo. The record does not reveal any prescriptions for an oral or injected systemic medication prescribed for her rash. She did indicate in November 2006 VA treatment records that she used a Eucerin cream and felt her rash had improved with Benadryl; however, VA treatment records from February 2010 reveal that she was prescribed Benadryl for insomnia and the December 2011 VA examiner did not list it or any other oral allergy or antihistamine medication in a Disability Benefits Questionnaire (DBQ) for skin diseases as treatment for contact dermatitis. The Board acknowledges that the December 2011 VA examiner checked a box in the DBQ report indicating that the Veteran had been treated with oral or topical medications in the prior 12 months for her contact dermatitis, including a systemic corticosteroid or other immunosuppressive medication and another topical medication. The systemic corticosteroid or immunosuppressive medication was listed as hydrophilic and triamcinolone acetonide ointments applied to the back and face on a constant or near-constant basis. The other topical medication was listed as a ketoconazole shampoo that was used on a constant or near-constant basis. While the VA examiner is competent to provide such a finding, the Board does not find it credible and gives it little probative weight, as it creates an internal inconsistency and is unsupported and, in fact, contradicted by the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that when assessing probative weight given to a medical opinion the Board must consider whether it is based on sufficient facts or data; the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts); see also Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (holding that the Board is not obligated to accept any examiner's opinion). Here, the examiner's finding is internally inconsistent because the examiner checked a box indicating that the Veteran's contact dermatitis had required systemic or immunosuppressive treatment, but also checked a box indicating that the Veteran had no systemic symptoms. Further, the examiner listed the two topical creams as the systemic treatment. VA treatment records do show that for the entire period on appeal she had active prescriptions only for two topical creams and a shampoo. However, the topical creams and shampoo are not systemic, as "systemic" is defined in Dorland's Illustrated Medical Dictionary as pertaining to or affecting the body as a whole, and the creams affect only the areas to which they are applied. Dorland's Illustrated Medical Dictionary 1888 (31st ed. 2007). Moreover, topical treatment is specifically and separately addressed under the noncompensable rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7806. Consequently, the weight of the evidence is against assigning a compensable evaluation. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson, 12 Vet. App. at 126-127; Hart, 21 Vet. App. at 511-512. In her October 2009 NOD, the Veteran reported that her flare-ups lasted from a week to a month and that her last one had lasted from June to September of 2009. The Veteran is generally competent to report that during flare-ups she experienced additional pain, discomfort, and emotional distress or that during flare-ups her rash covers more than 5 percent of her entire body or of exposed areas. Jandreau, 492 F.3d at 1376-77 n.4. The Board also finds her statements credible and gives them some probative weight, but notes that the record does not contain evidence that she required additional treatment and, as discussed above, the Board gives the Veteran's estimate regarding the size of her rash during flare-ups little probative weight. In addition, VA treatment records show that the Veteran's rash was often controlled by use of the topical creams and shampoo and often did not require prescription medication, as indicated by the description of her dermatitis as occasional and the absence of relevant prescriptions in several VA treatment records. Further, The Board also finds that the claim does not need to be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Board must refer a claim if (1) a service-connected disability presents such an exceptional disability picture that the available schedular ratings do not reasonably describe or contemplate the severity and symptomatology of the disability, and (2) the disability picture exhibits other factors, such as marked interference with employment and frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). In this case, the Veteran's disability picture is not exceptional or unusual. The competent objective medical evidence of record reflects that the schedular criteria contemplate the manifestations of the Veteran's contact dermatitis and there is no indication that the average disability would be in excess of that contemplated by the assigned noncompensable disability rating. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would not be warranted because Thun step two is not satisfied, as the record does not show marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1); see Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013). The Veteran has not been hospitalized and there is no evidence of incapacitating episodes or that the Veteran's contact dermatitis ever impacted her ability to function. While in her October 2009 NOD the Veteran reported that her flare-ups lasted from a week to a month and that her last flare-up had begun in June 2009 and ended in September 2009, the June 2009 VA examiner found her rash did not impact her ability to function. Further, while in her March 2012 substantive appeal she reported that her flare-ups caused burning and itching and made her miserable and sad, she also reported during the December 2011 VA examination that her rashes did not impact her overall ability to function. Accordingly, the referral of this case for extraschedular consideration is not in order. ORDER Entitlement to an initial compensable evaluation for contact dermatitis is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs