Citation Nr: 1343480 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 06-15 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to June 8, 2012 and in excess of 30 percent thereafter, for service-connected erythema multiforme. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for myocardial infarction/heart condition. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and September 2007 rating decisions of the RO. In February 2012, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript has been associated with the record. In April 2012, the Board remanded the claim for further development. The Board has reviewed the Veteran's Virtual VA file and has considered all of the records contained therein in the decision below. The issues of entitlement to service connection for diabetes mellitus, entitlement to service connection for myocardial infarction/heart condition, entitlement to service connection for hypertension, and entitlement to service connection for degenerative disc disease of the lumbar spine are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire appeal period, and resolving all reasonable doubt in the Veteran's favor, the Veteran's erythema multiforme more nearly approximates symptoms manifested by recurrent episodes during the past 12 months needing constant or near-constant systemic therapy. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for erythema multiforme have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.21 (2012); § 4.118, Diagnostic Code 7827 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided prior to the initial decision or prior to readjudication, and such duty to notify cannot be satisfied by post-decisional communications. See Mayfield v. Nicholson, 444 F. 3d. 1329 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The timing requirement enunciated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), applies equally to all five elements of a service connection claim. Id. VCAA notice is triggered by receipt of the claim, or application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that section 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. It further noted that the notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). From this statement, it follows that the notice requirements triggered by VA's receipt of a claim to establish service connection, such as in the instant case, differ in content from notice in response to a claim seeking a higher evaluation for a disability for which service connection has already been established. See 38 U.S.C.A. § 5103(b)(3). In the instant case, VCAA notice requirements as to disability ratings were satisfied because the RO provided the Veteran with the notice as to assignment of disability ratings applicable to a claim to establish service connection. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records and outpatient medical records have been obtained. Given that service connection has been established for the Veteran's skin disorder, and particularly in view of the grant herein, there is no basis for deferring this decision for the obtaining (if possible) of service personnel records, as requested in the REMAND section of this decision. The Veteran was afforded VA examinations. The examinations were adequate in that they were conducted by a skilled professional, considered the disability's history, and included an examination of the Veteran. Moreover, they provided factual findings sufficient to decide the claim. Furthermore, the Veteran was given the opportunity to testify at a hearing in front of the undersigned. He was explained what evidence he needed to submit in support of his claim and additional development was conducted as a result of his testimony at the hearing. Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Legal Criteria and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 . The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In this case, the RO assigned a 10 percent rating for the Veteran's erythema multiforme effective March 15, 2005 pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7827. In December 2012, the RO assigned a 30 percent disability rating effective June 8, 2012. Under Diagnostic Code 7827, covering the criteria for rating erythema multiforme, a 10 percent rating is warranted for recurrent episodes occurring during the past 12-month period that respond to treatment with antihistamines or sympathomimetics, or one to three episodes occurring during the past 12-month period requiring intermittent systemic immunosuppressive therapy. A 30 percent rating is warranted if there are recurrent episodes occurring at least four times during the past 12-month period, and intermittent systemic immunosuppressive therapy is required. A 60 percent rating is warranted if there are recurrent debilitating episodes occurring at least four times during the past 12-month period despite ongoing immunosuppressive therapy. In addition, depending upon the predominant disability, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Code 7801, 7802, 7803, 7804, or 7805). 38 C.F.R. § 4.118, Diagnostic Code 7827 (2008). VA outpatient treatment records of September 2005 show the Veteran sought treatment for a persistent rash all over his body which has not gone away with the current treatment. An August 2007 VA examination notes the Veteran complained of itchy, blistery rash for one week which is red in color with spots which makes it difficult for him to sleep. Physical examination showed red erythematous papules with ulcerations in different stages of healing with erythematous base located on his tarsals in the anterior and posterior, and also in his leg bilaterally. The rash blanched on pressure and disappeared but reappeared again when the pressure is relieved. There were signs of chronic irritants like itching on his skin. He denied any tinea cruris or any fungal infection of any part of his body. VA outpatient treatment records of November 2007 note the Veteran complained of a skin lesion on his shoulder. It was noted he has a very thick neck with some acanthosis nigricans. He had a lesion measuring 3 by 2 cm subcutaneous, ill defined nodule just under the scapular tip. He was diagnosed with intermittent erythema multiforme. Records of April 2008 note the Veteran reported that he had a rash all over the stomach and legs which occurs about every three months. He has been treating the rash with Aveeno anti-itch cream. In September 2008, he complained of an extremely itchy rash all over his body, saying he cannot rest at all from the intense itching. He reported the hydrocortisone was not working and requested pills for treatment. VA outpatient treatment records of October 2010 note the Veteran reported a 20 year history of recurrent blistering eruption with severe itching. Lesions take about two to three weeks to resolve and sometimes heal with small scars. Lesions can be anywhere on his body but particularly on the dorsum of the feet, and sometimes the dorsum of the hands. He reported four to five flare ups a year. Severe flare-ups have been treated with a burst of oral steroids and hydrocortisone cream. Physical examination revealed no acute blisters. There were several healing crusted areas on the dorsum of the feet only. He was prescribed, Lidex, a topical steroid. VA outpatient treatment records of September 2011 note the Veteran reported he has a rash which comes and goes which he treats with the prescribed cream. The Veteran was afforded a VA examination in June 2012. At the time, it was noted that the condition does not cause disfigurement of the head, face or neck; he had no skin neoplasms, and no systemic manifestations. Treatment in the past 12 months included antihistamines, topical corticosteroids and other topical medications. It was noted that he had 4 or more debilitating episodes in the past 12 months, and 4 or more non-debilitating episodes in the last 12 months. Physical examination showed 5 to 20 percent of the total and exposed body area was affected by the condition. The examiner noted that the Veteran could maintain gainful employment in a physical or sedentary environment as his exacerbations were mild and would not interfere with job requirements. As noted above, the RO has staged the disability rating for erythema multiforme. The Veteran is currently assigned a 10 percent disability rating prior to June 8, 2012 and a 30 percent disability rating thereafter. After a review of the evidence of record, the Board finds that the disability picture more nearly approximates that of a 60 percent disability rating for the entire appeal period and therefore a higher and uniform rating is warranted. In order to warrant a 60 percent disability rating, the evidence must show that there are recurrent debilitating episodes occurring at least four times during the past 12-month period despite ongoing immunosuppressive therapy. See Diagnostic Code 7827. The record reflects that the Veteran has consistently reported intermittent flare-ups occurring at least four times a year. In September 2005 he reported the rash was persistent and had not gone away. At the August 2007 VA examination evidence of chronic irritants were noted. In April 2008, he reported recurrence every three months. In September 2008 he requested pills for treatment as the hydrocortisone was not working. In October 2010 he reported a 20 year history of recurrent blistering eruption with severe itching which occurred four to five times per year. It was noted severe flare-ups have been treated with a burst of oral steroids and hydrocortisone cream; and he was prescribed a topical steroidal cream. At the June 2012 VA examination it was noted he had more than 4 flare ups a year. Moreover and significantly, at the February 2012 hearing the Veteran testified he has at least four outbreaks a year for which he was treated with steroids and which caused difficulty sleeping at night. Finally, the Board notes that the record clearly shows that the Veteran's episodes interfere with his ability to be comfortable and to sleep. Indeed, records show the Veteran's repeated complaints of an uncontrollable itch all over his body, and an itch that does not allow him to sleep at night. Considering the above, the Board finds that the Veteran has credibly argued that he has suffered from, several, at least four, outbreaks per year for the entire rating period on appeal. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the evidence shows that the Veteran has been treated with both topical and oral steroids which may alleviate his symptoms but do not prevent his outbreaks from reoccurring. The Board acknowledges that the evidence is not clear as to whether the Veteran is undergoing constant or near-constant systemic therapy. However, the record is clear that the Veteran uses both topical and oral steroids for treatment. Moreover, due to the frequency of the episodes and the noted duration of up to three weeks per episode, even if the Veteran was being treated only at the time of the flare-ups, it would be near constant treatment. Thus, affording reasonable doubt in favor of the Veteran, the Board finds that for the entire appeal period the Veteran's symptoms more nearly approximate those of an evaluation of 60 percent and therefore a 60 percent evaluation is granted for service-connected erythema multiforme. A 60-percent rating is the maximum rating that may be afforded under the relevant Diagnostic Codes, given that facial scarring disfigurement has not been a significant feature of this disability (Diagnostic Code 7800). The Board has considered the applicability of Rice v. Shinseki, 22 Vet. App. 447 (2009), wherein the Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. The Board acknowledges that the record reflects he is currently unemployed and in receipt of Social Security Administration (SSA) benefits. The SSA disability benefits were awarded on the basis of his back disability. However, the Veteran has not alleged at any point during the appeal, that his unemployability is due to the erythema multiforme. As the Veteran has not attributed his unemployability to erythema multiforme, the issue of entitlement to TDIU has not been reasonably raised by the record and cannot be inferred in the increased disability claim. Extraschedular Rating The Board has also considered whether referral for an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Veteran's symptoms are treated by constant or near-constant systemic therapy. These symptoms are specifically contemplated by the rating criteria. Hence, the rating criteria reasonably describe the Veteran's disability. In short, there is no indication in the record that the average industrial impairment from the Veteran's disability would be in excess of that contemplated by the 60 percent rating; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summary, the evidence supports an initial rating of 60 percent for the Veteran's erythema multiforme for the entire appeal period. The appeal is granted. ORDER An initial rating of 60 percent is assigned for erythema multiforme, subject to controlling regulations applicable to the payment of monetary benefits. REMAND The Veteran seeks service connection for diabetes mellitus, a heart condition, hypertension and degenerative disc disease of the lumbar spine. After a review of the record, the Board finds that additional development is needed prior to deciding the claims. The Veteran's representative has argued that the service treatment records are incomplete. He specifically points to the fact that there are no entrance or separation examinations associated with the record. A review of the claim file does indeed show that there are no entrance or separation examinations of record. There are service treatment records which have been obtained and some personnel records, specifically his evaluations. Service personnel records have not been obtained. The Board finds that service personnel records should be obtained as there are instances where copies of the entrance and/or separation physicals are associated with the personnel file. To ensure completeness of the record, the service personnel file should be associated with the claim file. In regards to the claim for service connection for hypertension, the Veteran was afforded a VA examination in June 2012. The examiner opined that hypertension was not due to service as it was not diagnosed in service. However, service treatment records do show elevated blood pressure readings several times during service. The examiner did not acknowledge the elevated blood pressure readings in service and did not discuss whether the readings were the early symptoms of hypertension. As such, the opinion is inadequate, and a new opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should associate the service personnel file with the claim file. All efforts to obtain the service personnel file should be clearly documented in the record. 2. After the above development has been completed, the RO/AMC should return the file to the examiner who conducted the June 2012 VA examination regarding the hypertension and request that a new opinion be provided as to the etiology of the currently diagnosed hypertension, i.e., whether it is at least as likely as not that such disability is etiologically related to service. The examiner should specifically provide an opinion as to whether the elevated blood pressure readings in service were the first manifestations of hypertension. A complete rationale for any opinion rendered should be provided. 3. After conducting the foregoing development and any other additional development deemed necessary, the RO should readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs