Citation Nr: 1342919 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-04 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an in initial compensable rating for contact dermatitis. 2. Entitlement to service connection for a skin condition, to include acne. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1999 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2012, the Board remanded the case for further development. Although the Veteran was scheduled for a skin examination, in compliance with the remand directives, he failed to complete the examination and indicated he did not want to reschedule the examination. A report of general contact from April 18, 2012 included the following statement: "[The Veteran] stated he just left the office and was not very happy with Dr. . . . He stated he did not care for the skin condition appointment. He expected for increase of other General Medical conditions, but not for the skin. At the end of our conversation, he understood and he did not want to reschedule his skin appointment." Based on the above, the Veteran has clearly indicated that he does not wish to participate in another VA skin examination, and the case will be adjudicated based on the evidence of record. See 38 C.F.R. § 3.655 (b). The Board cannot remand a case for an examination the Veteran will not attend. Thus, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Based on the best evidence, the Veteran's contact dermatitis has not affected the head, face or neck; does not cause scars; and has not required topical therapy or intermittent systemic therapy in the past twelve-month period. 2. The Veteran's facial acne preexisted active service, and this condition permanently worsened during active service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for contact dermatitis, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.31, 4.118, Diagnostic Code 7806 (2013). 2. The criteria for entitlement to service connection for a skin condition, to include acne, have been met. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations 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, 595 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the RO granted service connection for contact dermitis in a March 2007 rating decision, and assigned an initial, noncompensable rating under Diagnostic Code (DC) 7806. Under the criteria of DC 7806, dermatitis or eczema affecting less than 5 percent of the entire body or affecting less than 5 percent of exposed areas, and, requiring no more than topical therapy during the past 12-month period, warrants a noncompensable rating. Dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body, or affecting at least 5 percent, but less than 20 percent, of exposed areas, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period, warrants a 10 percent rating. Dermatitis or eczema affecting 20 to 40 percent of the entire body or affecting 20 to 40 percent of exposed areas, or; requiring 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, warrants a 30 percent rating. Dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period, a 60 percent rating is warranted. 38 C.F.R. § 4.118, DC 7806. Additionally, dermatitis can alternatively be rated as disfigurement of the head, face or neck (DC 7800), or scars (DC's 7801-7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7806. At the November 2006 VA general medical examination, the Veteran reported that his skin condition affected his arms, chest, shoulders, and lower extremities. He indicated that the condition occurred intermittently since 2000 and denied any treatment, to include topical medications, in the past twelve months. Local symptoms included dryness, redness, and itching; no systemic symptoms were noted. Physical examination revealed a group of papular, scaly lesions on the Veteran's left thigh in an inverted U-shape as well as similar lesions on the left side of the Veteran's abdomen. VA outpatient treatment records from August 2006 to March 2007 show no complaint of a skin disorder or rash. To the contrary, an August 2006 treatment record included the findings of a physical examination in which no skin rash was noted. In his March 2007 Notice of Disagreement (NOD), the Veteran indicated he did not receive treatment in the last twelve months for contract dermatitis, but that he did have breakouts on his arms, legs, chest and back. He stated: "After you have had these breakouts for so long, it would be ridiculous to go to the hospital every time one occurred." The Veteran also affirmed that he received no medications since his exposure to chemicals during service, but he reported using lotion on his skin rashes. In addition, the Veteran opined that his rash covered more than 5 percent of the affected area. He asserted that at the time of the examination, the rash covered almost half of his leg. Therefore, a review of the evidence shows that the Veteran has not required intermittent systemic therapy for his skin condition in the past twelve-month period. The Veteran himself has repeatedly indicated that he has not received such treatment for his contact dermatitis; only in his NOD did the Veteran indicate he used lotion to control his symptoms. The Board would also like to address the Veteran's assertion in his NOD that he does not go to the hospital for every outbreak of contact dermatitis. It is important for the Veteran to understand that in the context of DC 7806, "hospitalization" is not required for treatment of dermatitis. Instead, for a noncompensable rating, topical therapy is required and a higher rating can also be obtained, in part, by showing that intermittent systemic therapy was required in the past twelve-month period. Next, with regard to the affected areas, the Veteran has opined that his condition affects more than 5 percent of the affected area. The Board acknowledges the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the evidence does not show that the Veteran's contact dermatitis affects at least at least 5 percent, but less than 20 percent, of the entire body, or affects at least 5 percent, but less than 20 percent, of exposed areas. To the contrary, VA outpatient records are negative for any findings of a skin rash of any kind, and, during the November 2006 examination, the examiner noted a group of lesions of the Veteran's thigh and a rash on his abdomen; there was no finding of any other symptoms on the other affected areas, to include the Veteran's chest, back, arms, or his other leg. Again, while the Veteran has expressed disagreement with the rating as well as the percentage of affected area due to his contact dermatitis, he has chosen not to complete another VA examination to assess the severity of his skin condition at this time, and the Board simply must adjudicate the issue based on the evidence of record, which does not support the Veteran's contention. Simply stated, if more than half of the Veteran's leg was covered in a rash, it is reasonable to assume that the examiner would have documented such an outbreak. Nonetheless, the Veteran's statement does not account for the absence of symptoms on any other affected area, to include his other leg, chest, back, and arms. In addition, the evidence does not show that the Veteran has dermatitis of the head, face, or neck. Indeed, the Veteran himself has consistently described his dermatitis as affecting his arms, legs, chest, and back. Further, there is no evidence indicating the Veteran has scars from his dermatitis. As a result, rating the Veteran's contact dermatitis under DC 7800 or scars DC's 7801-7805 is not warranted in this case, nor is any other diagnostic codes appropriate to evaluate the Veteran's contact dermatitis. See Schafrath, 1 Vet. App. at 595. Therefore, for the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an initial compensable disability rating for his contact dermatitis. Consequently, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied on a schedular basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, 4.7. The Board also finds that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has not been raised in this case. The Veteran has made no assertion that his contact dermatitis prevents him from maintaining employment. Finally, the Board finds that an extraschedular evaluation is not warranted in this case because the rating criteria reasonably describes the Veteran's disability level and symptomatology; the assigned schedular evaluation is therefore adequate, and no referral is required. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Specifically, the schedular criteria provides various, alternative means for evaluating skin disability, to include on the basis of current manifestations, as well as the size, location, and features of scars. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The law also provides that a Veteran who served for six months or more during peacetime after December 31, 1946, shall be presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where a Veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies, meaning that for service connection to be warranted, it must be shown that a preexisting injury or disease was aggravated by a veteran's active military, naval, or air service. Aggravation will be found where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. To trigger the presumption of aggravation, the Veteran (i.e. the evidence of record) must simply show that there was an increase in disability during his time in service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the Veteran meets that showing, the burden then shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. See Wagner, 370 F.3d at 1096. However, "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, facial acne was noted on the Veteran's August 1998 entrance examination. For the reasons discussed below, the Board finds that service connection is warranted. See 38 C.F.R. § 3.304(b). During service, the Veteran received treatment for facial acne. Specifically, in July 2001, the Veteran reported that he had breakouts for the past two years. The treatment record also noted "climate here has made it worse." At that time, the Veteran indicated that he had tried Benzoyl Peroxide and Retin-A, but neither medication was successful. The Veteran was given a new prescription. Post-service, the Veteran continued to experience facial acne. At the November 2006 VA skin examination, the Veteran was diagnosed with acne and contact dermatitis. The Veteran indicated that his acne had resolved, but he reported occasional flare-ups. On the day of his examination, the Veteran's acne was described as "mild." In his March 2007 Notice of Disagreement, the Veteran indicated that although it was not reflected in the November 2006 examination report, he told the examiner that he used special soap on a daily basis to avoid "major" breakouts. The Veteran also stated that he was prescribed medication throughout his military career for acne and has continued to need such medication since separation from service. Therefore, a review of the evidence shows the Veteran was prescribed new medication in service to control his acne symptoms, and a service treatment record specifically noted that the Veteran's acne had become worse during service. Giving the Veteran the benefit of the doubt, based on the existing record, the Board finds that the Veteran's preexisting acne permanently worsened during active service, and there is no clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran's claim for entitlement to service connection for acne is granted. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by May 2006 and September 2006 letters to the Veteran. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the evidence of record includes statements in support of the claim by the Veteran and his representative, VA treatment records, private medical records, and several VA examinations. With regard to the Veteran's service treatment records, in December 2009, the RO sent the Veteran a letter advising him of the unavailability of some of his service treatment records, indicating that only copies of previously submitted records were part of his claims file. In circumstances such as this, where the original service treatment records are unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As reflected in the discussion above, the Board has endeavored to do so. In addition, VA has provided the Veteran with a skin examination as part of a general medication examination in November 2006. Although the Veteran has expressed disagreement with the examiner's findings, the examination retains probative value because the examiner described the Veteran's disabilities in sufficient detail and took into account both the Veteran's reported history and the results of a physical examination in rendering his conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In this regard, it is important for the Veteran to understand that "the duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, while the Veteran was provided with an opportunity to complete another skin examination in April 2012, he chose not to do so, and, as explained above, the existing November 2006 retains probative value. Therefore, the Board finds that VA has fulfilled any duty to assist, and the Board has adjudicated the claim in compliance with 38 C.F.R. § 3.655(a) (2013). In conclusion, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial compensable rating for contact dermatitis is denied. Entitlement to service connection for acne is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs