Citation Nr: 1414074 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 09-46 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected allergic contact dermatitis. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active service from August 1979 to May 1987; only the period from August 1979 to August 1983 was honorable, but that is irrelevant to the issue on appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a hearing at the RO, in regard to his claim for an increased rating for allergic contact dermatitis, conducted by the undersigned Acting Veterans Law Judge in April 2011. A copy of the transcript is associated with the claims file. A review of the Virtual VA and Veterans Benefits Management System electronic claims files reveals a March 2014 Informal Hearing Presentation and additional VA treatment records. The RO indicated that it reviewed the treatment records prior to the issuance of the September 2012 Supplemental Statement of the Case. The remaining documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the issue on appeal. The issue of service connection for PTSD is 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 The Veteran's allergic contact dermatitis has not resulted in symptoms more nearly approximating 20 to 40 percent of exposed areas affected or 20 to 40 percent of the entire body affected; systemic therapy was also not required for at least six weeks during the past 12 month period. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for allergic contact dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a September 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran was notified of all other elements of the Dingess notice, including the disability rating, effective date elements of his claim, and the criteria applicable to the Veteran's increased rating claim in the September 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records and VA treatment records. 024274849 The Veteran submitted new evidence in 2012 with a waiver of RO consideration. The Veteran was also afforded multiple VA examinations for his allergic contact dermatitis. When taken together, these examination reports reflect that the examiners recorded the Veteran's current complaints, conducted an appropriate physical examination, and rendered an appropriate opinion consistent with the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on this record, the Board concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2. In addition, the Board finds that there was compliance with the directives of the January 2011 and March 2012 remands. As instructed in the January 2011 remand, the Veteran was scheduled for a hearing. Further, as instructed in the March 2012 remand, the Veteran was provided a VA examination to determine the current severity of his allergic contact dermatitis. Therefore, there was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Finally, during the hearing, the undersigned addressed the Veteran's contentions regarding the issue decided herein, and provided the Veteran with an opportunity to fully describe the current severity of his condition. Such actions supplemented VCAA development and complies with 38 C.F.R. § 3.103. See also Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Principles and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the uniform 10 percent schedular rating is proper. The Veteran's allergic contact dermatitis is currently rated 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, applicable to dermatitis. The criteria for rating skin disabilities were revised, effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation specifically states that the new criteria apply to all applications for benefits received by VA on or after October 23, 2008 and that a Veteran rated under the skin criteria in effect prior to that date may request review under the revised criteria. The Veteran has not requested such review, and his claim was received prior to October 23, 2008. Regardless, the schedular criteria applicable in the instant case, 38 C.F.R. § 4.118, DC 7806 have remained unchanged. Under Diagnostic Code 7806, a 10 percent rating is warranted if at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period. For the following reasons, the evidence reflects that the symptoms of the Veteran's allergic contact dermatitis do not more nearly approximate the criteria for a 30 percent rating. On the June 2007 skin examination, the Veteran indicated an onset of firm, large, itchy bumps on his arms, scalp, back, and legs in the 1980's that resolved after three years and resumed in July 2006. In the past 12 months, the Veteran had been prescribed only ointments and creams for his dermatitis, with no systemic medication required. The examiner noted that the Veteran tested positive for a nickel allergy. On physical examination, the examiner described post inflammatory hyperpigmentation on his arms, hands, lower abdomen, upper inner thighs, and some small areas on the buttocks and groin. The examiner further noted that a few hyperpigmented papules were present in the beard area. The examiner determined that approximately 10 percent of the Veteran's exposed body was affected and 10 to 15 percent of his entire body was affected. On the December 2008 VA skin examination, the Veteran reported that he had increased itchy lesions since May 2008 that started as blisters that oozed and then became dry, dark, and leathery. He indicated that the lesions were present in previously unaffected areas such as his beard, neck and shoulders, back, lower thighs, abdomen, and scrotum. The examiner noted that the Veteran's treatment included only topical creams, lotions, and ointments. On physical examination, the Veteran presented with scattered, hyperpigmented macules on the face, especially the bearded area, neck, trunk, thighs, and knees. There was a two centimeter, lichenified plaque on the dorsum of his left wrist and a small lichenified plaque on the proximal digit of the left tall finger. The examiner determined that approximately five percent of exposed areas were affected and five to 10 percent of the entire body was affected. On VA skin examination in May 2010, the Veteran presented with no active lesions on the face, scalp, and neck. He had some scattered, small, firm hyperpigmented papules in the beard area, but no pustules or active lesions. There was a small hypopigmented patch on the left flexor wrist, a 13 mm lichenified plaque on the right dorsal wrist, and a 10 cm by 6 cm hyperpigmented patch on the right proximal forearm. The Veteran also presented with a single, small bilateral hyperpigmented patch adjacent to both knees and a small, dry papule between the right big and second toe. The remainder of the skin examination revealed no active lesions. Ultimately, the examiner determined that approximately two percent of exposed areas and two percent of the entire body was affected. In regard to medications, the examiner indicated that the Veteran received an intralesional keloid injection of a plaque on the left flexor wrist in February 2010, in addition to various creams, ointments, and lotions. The Veteran was afforded a VA examination in April 2012. On physical examination, the Veteran presented with a few pink papules on the anterior neck and one dried vesicle on the third interdigital space. The examiner reported that the rash on the anterior neck appeared to be new and that the Veteran previously had a rash on the torso and arms that was not currently active. The Veteran also presented with a thin hyperpigmented patch with two perifollicular papules on the posterior thighs, but the examiner determined that was related to folliculitis and not allergic contact dermatitis. The examiner indicated that the Veteran's allergic contact dermatitis was well-controlled and very minimal. Specifically, he determined that less than one percent of exposed areas were affected and approximately one percent of the entire body was affected. The examiner remarked that treatment records from May 2008 and August 2011 mentioned additional exposed areas. The examiner was unable to estimate the percentage of the body affected, however, because the areas were not described in sufficient detail. The examiner also noted that the Veteran had not required the use of systemic therapy for his allergic contact dermatitis. The Board notes that the September 2006 VA examination report and the VA treatment records reflect complaints of allergic contact dermatitis and rashes on his body, to include on his hands, wrists, scalp, neck and shoulders, abdomen, torso, thighs, groin, buttocks, and knees; these are consistent with the examinations of record. This evidence is inadequate for rating purposes, however, as the examiners did not address the rating criteria, specifically, the percentage of the Veteran's body affected by his allergic contact dermatitis and whether the Veteran required systemic therapy. The treatment records do note, however, the use of clobetasol and synalar soaks and ointments or creams. The above evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 30 percent rating under DC 7806. The area affected was far less than between 20 and 40 percent of either the entire body or exposed areas. Moreover, although the Veteran received an intralesional keloid injection in February 2010, which may constitute systemic therapy, the evidence reflects that the Veteran did not require systemic therapy for at least six weeks during the prior 12 months. Creams and ointments such as the Veteran used are not systemic therapy. As such, a 30 percent rating, or higher, is not warranted. As to the Veteran's statements that greater than 10 percent of his body is affected by the allergic contact dermatitis, he is competent to report about the areas of his body affected. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, his statements in this regard are credible, as the evidence reflects that, during times within the appeal period, more than 10 percent of his body was affected and he had rashes on the parts of his body which he identified; however, the Veteran does not contend, and the evidence does not reflect, that at any time during the period on appeal, the Veteran's allergic contact dermatitis affected 20 percent of his body, either exposed or entire, or that he required systemic therapy for at least six weeks during the previous 12 months. As such, his lay statements do not entitle him to a rating in excess of 10 percent. The Board has also considered the Veteran's assertions that the May 2010 VA examiner did not address all of the Veteran's "spots" and lesions and that the VA examinations were not conducted during active periods of the disease. The Veteran was, however, subsequently afforded a VA examination in April 2012. The April 2012 VA examination report provides a thorough and detailed description of the severity of the Veteran's skin disorder and there is no indication that it did not accurately depict all active areas. Further, as demonstrated by the record, the Veteran's skin disorder is shown to be present at some times and absent at other times. The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In that case, the Court concluded an examination during an inactive or remission phase did not accurately reflect elements of a skin condition that caused the Veteran to miss three to four months of work at a time. However, in the present case, the Veteran was afforded five VA compensation examinations when the Veteran contends that his skin disorder was inactive. Given that the Veteran indicated his outbreaks occur only five or six times a year, it is highly unlikely that an examination could be scheduled during an active period. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected allergic contact dermatitis. In this case, the Veteran's symptomatology, treatment regimen, and overall impairment are fully contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). Although the Veteran indicated that he had to avoid irritants at work, there is no evidence of marked interference with employment and there is no indication that the Veteran was hospitalized for his allergic contact dermatitis. As such, the Veteran's symptoms have not rendered impractical the application of the regular scheduler standards. Therefore, referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 30 percent rating at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for a rating in excess of 10 percent for the service-connected allergic contact dermatitis must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER An evaluation in excess of 10 percent for the service-connected allergic contact dermatitis is denied. REMAND The claim for PTSD must be remanded to afford the Veteran a chance to provide additional information. The Board finds that the Veteran's claim of service connection for PTSD was perfected in a December 2008 document. No additional action has been taken on this claim since that time. As the Veteran has sought treatment at VA, there are likely relevant VA records to be obtained. Additionally, as the Veteran did not file a standard VA Form 9 to perfect his appeal, it is not clear from the record whether the Veteran wanted a hearing on this issue. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran a VA Form 9 for the claim of service connection for PTSD. The Veteran should also be informed that failure to return the VA Form 9 will be deemed as an indication that he does not want a hearing on the issue. 2. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. Obtain the Veteran's service treatment records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. The RO should also conduct any development deemed necessary. After completing such development, the RO should readjudicate the claim remaining on appeal in light of all of the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 3. If indicated, schedule the Veteran for an appropriate hearing in accordance with his request. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2013). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs