Citation Nr: 1402819 Decision Date: 01/23/14 Archive Date: 01/31/14 DOCKET NO. 13-22 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a rating in excess of 20 percent for scarring alopecia. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from November 1980 to July 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for headaches, to include as secondary to scarring alopecia, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" and "VBMS" systems to ensure a total review of the evidence. FINDINGS OF FACT 1. Scarring alopecia affecting more than 40 percent of the Veteran's scalp is shown. 2. The Veteran has not been diagnosed with dermatitis or eczema at any point during the period on appeal; more than one characteristic of disfigurement has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for scarring alopecia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, 4.119 Diagnostic Codes (DC) 7800, 7806, 7830 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an increased rating for alopecia. She has described her current skin condition as causing baldness of her head. Due to this disability, she must wear a wig and feels embarrassed and self-conscious by her appearance. She also alternately described experiencing pain, itchiness, and flaking scalp. The Veteran's disability is currently-rated at 20 percent under DC 7830 for scarring alopecia. This is the maximum schedular rating under this code and is assigned when a veteran has scarring alopecia affecting more than 40 percent of the scalp. The medical record supports the 20 percent rating. In October 2008, she was noted to have total baldness of the scalp. In January 2011, a VA examiner estimated that the alopecia covered 60 percent of the exposed area. In December 2012, a VA examiner estimated that the area affected was 75 percent of the head. As more than 40 percent of the scalp is affected, a 20 percent rating is warranted. Significantly, the Veteran's disability (alopecia) is specifically anticipated by the rating schedule under DC 7830 (scarring alopecia). The Board also notes that she has been diagnosed with various forms of alopecia, including areata alopecia, androgenetic alopecia, and cicatricial alopecia. The regulations also list alopecia areata as a separate disability under DC 7831; however, the maximum rating under DC 7831 is 10 percent. As her rating already exceeds the maximum available under DC 7831, it does not provide the basis for a higher rating. The Veteran contends that her disability should be assigned a 60 percent rating under DC 7806 for dermatitis or eczema or a higher rating under DC 7800 for burn scars or disfigurement of the head, face, or neck. Although rating by analogy is anticipated under the regulation, there is no basis to do so in this case. She has not been diagnostic with dermatitis or eczema at any point during the period on appeal. Therefore, DC 7806 relating to dermatitis and eczema is not applicable. Further, the Board has also considered whether a higher rating is warranted under DC 7800 for disfigurement of the head, face, or neck. However, a higher 30 rating under this diagnostic code is not warranted unless the Veteran demonstrates visible tissue loss or two to three characteristics of disfigurement. The characters of disfigurement include: scar of 5 inches or more in length, scar at least one-quarter inch wide, surface contour of scar is elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo- or hyper-pigmented in an area exceeding six square inches, skin texture abnormal in area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, or skin indurated and inflexible in an area exceeding six square inches. The evidence does not reflect that the Veteran has experienced tissue loss. Moreover, the January 2011 VA examiner specifically found no tissue loss. Similarly, the evidence does not reflect she has two or three of the listed characteristics of disfigurement. While hyper-pigmentation was noted on a few occasions, the evidence does not reflect any other characteristic of disfigurement. The January 2011 examiner specifically opined the Veteran did not experience many of the characteristics of disfigurement, including scarring, hypo-pigmentation, tissue loss, inflexibility, or abnormal texture. Therefore, although higher ratings are listed under other diagnostic codes, the diagnostic code addressing the precisely-identified disability directly is more appropriately used. Further, DC 7806 is not for application and no higher rating is warranted under DC 7800. The Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed the Veteran's symptoms to her service-connected disability. With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. While the Veteran's complaints of pain, flaking, and itching are not contemplated under DC 7830, her symptoms do not rise to the level of marked interference with employment or frequent periods of hospitalization. She has expressed the need to wear wigs to work and the embarrassment of alopecia but the evidence does not show an exceptional or unusual disability picture. Specifically, she has not been hospitalized for this disability. As to employment, at the January 2011 VA examination she reported that alopecia has not had any overall functional impairment on her employment. Thus, extraschedular referral is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Board finds the evidence does not suggest, and the Veteran has not alleged, that she is unemployable. She reported that she had to wear a wig in order to get and maintain a job but this assertion does not suggest she is not employable. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to scarring alopecia. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. In the same July 2008 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Service treatment records have been obtained, as have private treatment records. The Board notes the Veteran provided an additional medical release in December 2012 which expired before the records could be obtained. The VA sent her a letter in May 2013 informing her that the release had expired and requesting that she complete a new release. To date no updated medical release has been received. Therefore the VA has taken all available steps to obtain the private treatment records and could not further assist her without her cooperation. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for scarring alopecia is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs