Citation Nr: 1343293 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 06-33 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for atopic dermatitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from September 2002 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for atopic dermatitis and assigned an initial 30 percent disability evaluation effective January 13, 2005. At the Veteran's request, Travel Board hearings were scheduled in January 2009 and May 2009. The Veteran failed to appear for both of these hearings. Since she has not requested a new hearing and has not provided good cause for having missed the hearings, the Board considers the Veteran's request for a hearing withdrawn. 38 C.F.R. § 20.704 (2013). In September 2010 and November 2012, the Board remanded this matter for additional evidentiary development which has been competed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDING OF FACT The Veteran's atopic dermatitis has not affected more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or required constant or near-constant systemic therapy during any past 12-month period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for atopic dermatitis have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7806 (as in effect prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded the claim on two separate occasions. In September 2010, the Board, in relevant part, instructed the RO/Appeals Management Center (AMC) to schedule the Veteran for an appropriate VA examination, and readjudicate the claim. As a result of the remand, the Veteran was provided an appropriate examination in October 2010 and her claim was readjudicated in a June 2012 supplemental statement of the case. Subsequently in November 2012, the Board determined that the October 2012 examination report did not include a meaningful summary of the Veteran's treatment for her disability, including her history of having received systemic therapy such as corticosteroids or other immunosuppressive drugs. The Board also found that there were outstanding VA treatment records. Accordingly, the Board instructed the RO/AMC to obtain outstanding VA treatment records, provide the Veteran with a new examination to evaluate her skin disorder, and to readjudicate the claim. Thereafter, additional VA treatment records were associated with the Veteran's claim, she was scheduled for a VA examination in February 2013 to which she failed to report, and her claim was readjudicated in a February 2013 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in February 2005, prior to the September 2005 rating decision, and in March 2008, 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). Specifically, the AMC notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. She was informed of the type of evidence that could be submitted to support his claim. The March 2008 letter, along with a May 2008 letter, also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in various supplemental statements of the case, most recently issued in February 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). The February 2005 letter provided the Veteran with the notice required for the initial claim of service connection for a skin disorder. Service connection was subsequently granted, and the Veteran appealed the initial rating assigned. In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case, as neither the Veteran nor her representative has alleged such prejudice. VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. As discussed above, in November 2012, the Board specifically remanded this claim to provide the Veteran with an examination. Although she was scheduled for an examination in February 2013, the Veteran failed to report to that examination. The Board is aware that there is no notification letter reflecting the scheduled examination in the paper or electronic claims folder. However, the Board notes that review of the claims folder clearly demonstrates that the Veteran was given ample notice of her scheduled examination. In a November 2012 notification letter, the AMC stated that the nearest VA facility would contact the Veteran to schedule her for an examination. Additionally, the February 2013 supplemental statement of the case discussed the Veteran's failure to report for her scheduled examination as the continual basis for the denial of her claim. These documents were sent to the correct address on file and were not returned as undeliverable. The Board notes that these documents were sent to the same address the Veteran listed in a September 2013 correspondence requesting to change her name. Furthermore, the Board notes that the Veteran has a history of failure to report to scheduled VA examinations and hearings. She failed to report to a May 2012 neurological examination, as well as to both of her scheduled travel board hearing hearings. Furthermore, neither the Veteran nor her representative has argued that the Veteran did not receive notification of the scheduled examination despite having multiple opportunities to raise such an assertion. Significantly, in a February 2013 waiver of the 30 day waiting period following the issuance of the February 2013 supplemental statement of the case, the Veteran's representative indicated that it had no additional evidence and requested that the Veteran's case be forwarded to the Board for expedited processing. Then, in its May 2013 Informal Hearing Presentation, the Veteran's representative again did not raise any concern as to the notification of the scheduled VA examination. Therefore, because the Veteran was given ample notification that she would be scheduled for an examination and she failed to report for that examination, and given multiple opportunities to provide good cause to report to her examination, the Board finds that there is no prejudice to proceed with the claim. See 38 C.F.R. § 3.655(a) (2013). Without the Veteran's cooperation, VA cannot obtain the evidence necessary to ascertain the current severity of her disorder. While VA has a duty to assist the Veteran in substantiating her claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). Because the Veteran has not cooperated in the development of her case, the Board finds that all efforts to obtain the necessary evidence have been exhausted and further attempts would be futile. 38 C.F.R. § 3.159(c) (2), (3) (2013). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran failed to appear for the travel board hearings scheduled per her request. Therefore, the duties to notify and assist have been met. Analysis The Veteran essentially contends that her skin disability is more disabling than contemplated by the current 30 percent evaluation. Disability evaluations 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 evaluations shall be applied, the higher evaluation 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. See 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 evaluation, 38 C.F.R. § 4.1, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's disorder is rated under Diagnostic Code 7806, used in rating dermatitis or eczema, and the Board finds that it is the most appropriate code as it directly addresses her disability, which has been diagnosed as eczema and dermatitis. 38 C.F.R. § 4.118, Diagnostic Code 7806 (as in effect prior to October 23, 2008). Pursuant to Diagnostic Code 7806, a 30 percent rating is warranted for dermatitis or eczema covering 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, during the past 12 month period. Id. The next and highest rating under this diagnostic code, a 60 percent rating, is warranted when more than 40 percent of the entire body or more than 40 percent 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. During the pendency of the appeal, the criterion for evaluating the skin was amended in September 2008. However, these amendments only apply to those claims filed on or after October 23, 2008. Because the claim in this case was filed in 2005, these most recent amendments are not applicable to the Veteran's claim. The Board notes that the regulations could be applied upon the request of the Veteran; however, no such request has been made by the Veteran or her representative. The relevant evidence of record includes a May 2005 VA examination report, which noted the Veteran's report of treatment by topical Clobetasol and IM Kenalog. The examiner observed eczematous patches and plagues involving the distal upper and lower extremities, comprising approximately 30 percent of the body surface area. On VA examination in March 2007, the Veteran reported past treatment of oral steroids but not in the past 12 months. She also reported use of topical steroids, antihistamines, narrow band UVB therapy, and ultraviolet therapy. At that time, her rash had improved with topical medication. She primarily used Triamcinolone 1 percent ointment once or twice a day, Clobetasol ointment once or twice a day during a flare-up, and returned to Triamcinolone once the condition improved. She also took over the counter Benadryl as needed and Zomig at night. The Veteran related that itch was the most bothersome symptom. On evaluation, the examiner found a few small scaly nummular patches on the dorsum of the hand, left calf, and right ankle. This represented one to two percent of the exposed area and one to two percent of the entire body. There was no scarring or acne. The diagnosis was controlled eczematous dermatitis. The Veteran was provided another examination in October 2010. The examiner noted that the Veteran had used multiple topical steroids, including Dermacerin and other moisturizers. The Veteran reported having tried UVB light therapy on five occasions, and in the past 12 months she had only used Triamcinolone cream topically as needed for flare-ups. As for the Veteran's use of systemic therapy, the examiner noted that the Veteran could not recall taking any oral or systemic steroids or immunosuppressive drugs. On evaluation, the examiner observed a small exematous patch on the left middle finger and faint hyper pigmented patch on the bilateral lower extremities. The examiner found that approximately 1 percent of the exposure area and less than 5 percent of the entire body was affected. Additionally, there was no scarring or disfigurement, or acne or chloracne. Diagnoses were mild eczema and mild post-inflammatory hyperpigmentation. Review of the VA treatment records showed that the Veteran had clear skin at times and flare-ups at other times. Additionally, she was treated with corticosteroids, as well and some systemic therapy. For example, a February 2008 VA treatment report noted that the Veteran had been prescribed methylprednisolone, in 4 milligram tablets. A September 2005 prescription for this same medication was also in the claims file. Based on the current evidence of record, the Board finds that an evaluation in excess of the current 30 percent disability rating is not warranted. First, there is no indication that the skin disorder affects 40 percent of the entire body or more than 40 percent of exposed areas affected. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (as in effect prior to October 23, 2008). The May 2005 VA examination report reflected that 30 percent of the Veteran's body was affected. However, the remainder of the evidence showed that the skin disorder accounted for at most five percent of the entire body and at most two percent of the exposed area. Additionally, on multiple VA clinical visits, the Veteran had no rashes noted. In any case, even at the very worst her skin disorder has never covered 40 percent of the entire body or more than 40 percent of exposed areas affected. Furthermore, there is simply no evidence that she has required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See id. While she had flare-ups, the record shows that her skin had also been clear at times (i.e. no rash). The record reflected that she used various therapies as needed. Significantly, in October 2010, the Veteran, herself, was unable to recall whether she used systemic steroids or immunosuppressive drugs. Therefore, the criteria for a higher evaluation are not met. Additionally, as outlined by the Board in November 2012, the record was unclear as to the Veteran's treatment and therefore remanded the Veteran's claim for an additional examination. The purpose of the VA examination was to specifically provide a meaningful summary of the Veteran's disability. As noted above, without the Veteran's cooperation, the Board cannot obtain additional evidence and in this case must rate the claim based on the evidence of record. See 38 C.F.R. § 3.655(b) (2013). Based upon the guidance of the Court in Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other Considerations In making this decision, the Board must fully consider the lay assertions of record. In this regard, a layperson is competent to report on his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has not overlooked the Veteran's statements with regard to the severity of her disability. The Veteran is competent to report on factual matters of which she had firsthand knowledge; and the Board finds that the Veteran's reports concerning symptomatology have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports and treatment records have been accorded greater probative weight. Although the Veteran contended that she has required constant treatment for her skin disorder, the objective evidence of record at this time does not demonstrate that it is the type of treatment contemplated by the schedule, i.e., systemic corticosteroids or immunosuppressive drugs. 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 evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation 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 evaluations for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Veteran indicated that her main symptom was itching, which affected her ability to sleep and led to decreased concentration. She was able to perform her activities of daily living. The Board notes that itching is specifically contemplated by the criteria which evaluates the Veteran's disability based on the percentage of body area affected as well as frequency of treatment thereof. 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) 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 Court 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 argued, and the record does not otherwise reflect, that her skin disorder render her totally unemployable. She has specifically stated that her skin disorder does not have any effect on her ability to do her job. See e.g. October 2010 VA examination report. Accordingly, the Board concludes that a claim for TDIU has not been raised. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 30 percent for atopic dermatitis is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs