Citation Nr: 1342691 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 12-33 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae, eczema (skin disability). ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to May 1989 and from December 1989 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection and assigned a 10 percent rating. FINDINGS OF FACT 1. From July 6, 2010, to July 24, 2013, the Veteran's skin condition was on his face and neck covering approximately 10 percent of his exposed skin and was treated with corticosteroids six weeks or more during the year, but not constantly. 2. From July 25, 2013, forward, the Veteran's skin condition worsened, covered more than 50 percent of his face and neck, and was treated with near constant corticosteroids. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent for eczema have been met for the period from July 6, 2010, to July 24, 2013. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804. 2. The criteria for an initial rating of 60 percent for eczema have been met for the period from July 25, 2013, forward. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The RO sent a letter to the Veteran in July 2010 providing him notice before adjudication of his claims, which complied with the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). In so doing, the VA satisfied its duty to notify the Veteran. Where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been substantiated and no additional notice is required as to downstream issues, including the disability evaluation. Dingess/Hartman, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded two VA examinations for his skin disability in September 2010 and July 2013. These examinations addressed the pertinent rating criteria, and there is no argument or indication that they are inadequate. The claims file also contains private medical records. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) and 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Skin disabilities are rated under section 4.118. Specifically, the Veteran's eczema was rated under diagnostic code 7806. For the next highest rating of 30 percent under this diagnostic code, the condition must cover 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. 38 C.F.R. § 4.118 DC 7806. For the maximum 60 percent rating, the condition must cover more than 40 percent of the entire body or more than 40 percent of the 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. Id. The Veteran is competent to report symptoms of his skin disability that are observable by his senses, but he is not competent to make a diagnosis or assess the level of disability related to his skin disability as this requires specialized knowledge and training. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As far as competency, the Board also finds him credible as his statements are consistent with medical evidence of record. The Board finds that staged ratings are appropriate because the evidence suggests the Veteran's skin disability worsened at some point between the July 24, 2013 VA examination and private treatment on October 17, 2013. See Fenderson, 12 Vet. App. at 126-127. Giving the benefit of the doubt to the Veteran, the date assigned to the staged rating is July 25, 2013, the date after the VA examination and the earliest possible date of worsening. The Veteran's skin disability most closely approximated the criteria for a 30 percent rating from the date of his claim, July 6, 2010, to the date of the VA examination, July 24, 2013. See 38 C.F.R. § 4.118 DC 7806. During the September 2010 VA contract examination, the Veteran reported itching, shedding, ingrown hairs and bumps on his face and jaw line. He reported having 144 attacks within the previous year, which included irritation, puss bumps, and bleeding during flare-ups. See VA Contract Examination 9/10. During the year prior to the examination, the Veteran was prescribed Retin-A, a retinoid topical treatment, and Doxycyclin, an antibiotic. See id. The examiner diagnosed pseudofolliculitis barbae, which covered 10 percent of the exposed area. See id. Private treatment from December 2012 shows a diagnosis of pseudofolliculitis barbae and prednisone treatment, or immunosuppressive treatment. During the July 2013 VA contract examination, the examiner diagnosed eczema, which covered less than five percent of the exposed area. The examiner noted that the Veteran was using Retin A, erythromicin, and Cleocin T but no systemic corticosteroids or other immunosuppressive medications. See VA Contract Examination July 2013. Based on the foregoing evidence, the Veteran's skin condition covered less than 20 percent of the exposed area affected. A 30 percent disability rating, however, is warranted because he had corticosteroid treatment for six weeks or more during a 12-month period. In a September 2013 letter, Dr. JT confirmed prednisone treatment for at least six weeks in the prior year. The Veteran's skin condition does not rise to a 60 percent disability rating during this period, because the evidence shows that his corticosteroid treatments were given in cycles for a total of about seven weeks, not constantly or near-constantly. See Letter Dr. JT 9/13. The evidence shows the Veteran's skin disability worsened after the July 24, 2013 VA examination and most closely approximates the criteria for a 60 percent rating from July 25, 2013, forward. See 38 C.F.R. § 4.118 (DC) 7806. October 2013 private treatment shows a diagnosis of eczema, which affected more than 50 percent of the Veteran's face and neck. See Treatment Dr. JT 10/13. Dr. JT also noted that the Veteran was having near constant use of corticosteroids and systemic therapy. See id. Based on the evidence from the October 2013 treatment, the Veteran's skin disability meets the criteria for the maximum 60 percent rating under this diagnostic code for a condition that affects more than 40 percent of the exposed area or requires near constant corticosteroid treatment. In compliance with Schafrath, all applicable diagnostic codes have been considered; however, the Veteran's skin disability could not receive ratings in excess of those assigned herein under any analogous codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see also 38 C.F.R. § 4.118 DC 7800 (requiring tissue loss, gross distortion, or asymmetry). The Board has also considered whether the skin disability claim should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). This case, however, does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's skin disability are fully contemplated by the schedular rating criteria. Briefly, the rating schedule addresses the extent of the body and the exposed area affected as well as the frequency of required treatment. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptoms, and the rating schedule is adequate to evaluate his disability picture. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. In conclusion, the preponderance of the evidence supports an initial rating of 30 percent from July 6, 2010, to July 24, 2013, and 60 percent from July 25, 2013, forward. See 38 C.F.R. § 4.118. The Veteran was afforded the benefit of the doubt in assigning the ratings and effective dates, and claims for ratings in excess to those assigned herein must be denied. 38 C.F.R. § 4.3. ORDER An initial rating of 30 percent from July 6, 2010 to July 24, 2013 and 60 percent from July 25, 2013 forward for the Veteran's skin disability is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs