Citation Nr: 1445280 Decision Date: 10/10/14 Archive Date: 10/16/14 DOCKET NO. 10-33 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial, compensable rating for eczema since February 22, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini INTRODUCTION The Veteran had active military service from October 2001 to October 2002 and from June 2005 to May 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs Regional Office in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a June 2013 videoconference hearing. In April 2014, the Board dismissed the Veteran's claim to an initial rating in excess of 10 percent for degenerative joint disease of the left knee, and denied her claim of an initial, compensable rating for eczema prior to February 22, 2012. It otherwise remanded the Veteran's claim for an initial, compensable rating for eczema since February 22, 2012. Following the development requested, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in August 2014 continuing a denial of the Veteran's claim. The appeal has since been returned to the Board for further appellate review. FINDINGS OF FACT Since February 22, 2012, the Veteran's eczema has been characterized by recurring plaques and/or scaly patches of the feet and hands with dryness and itching; the Veteran's eczema, covers less than five percent of the entire body and less than five percent of exposed areas and does not require the use of systemic corticosteroid therapy or other immunosuppressive drugs. CONCLUSION OF LAW Since February 22, 2012 the criteria for a compensable disability rating for eczema have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In a January 2008 letter, the RO notified the Veteran of information and evidence necessary to substantiate her underlying claim for service connection for eczema. The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. The letter also informed the Veteran of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In regards to the Veteran's appeal for an initial, compensable rating for eczema, once a veteran disagrees with the rating assigned following a grant of service connection, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2013); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Otherwise, VA has done everything reasonably possible to assist the Veteran with respect to her claim on appeal in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's identified private and VA treatment records are associated with the claims folders, the Veteran has been provided an opportunity to testify in support of her claim, and she has been provided VA examinations to evaluate the severity of her eczema. II. Analysis In an August 2008 rating decision, the RO granted service connection and assigned a noncompensable rating for eczema effective November 27, 2007 (date of original claim for service connection). The disability rating assigned was based, in part, on clinical findings noted in a report of August 2008 VA examination. The Veteran appealed the noncompensable rating assigned. In April 2014, the Board denied the claim of an initial, compensable rating for eczema prior to February 22, 2012. It remanded the claim for an initial, compensable rating for eczema since February 22, 2012 for additional evidentiary development. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing 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. Under the regulations for the evaluation of skin disabilities, eczema is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7806. Dermatitis or eczema of less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period will be rated at zero percent. Dermatitis or eczema with at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period will be rated 10 percent. Dermatitis or eczema of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period will be rated 30 percent. Dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or requiring constant or near-constant systemic therapy such as corticosteroid or other immunosuppressive drugs during the past 12-month period will be rated 60 percent. Otherwise, dermatitis or eczema may be rated under the applicable diagnostic codes for disfigurement of the head, face, or neck and/or scars. 38 C.F.R. § 4.118, Diagnostic Code 7806 (effective August 30, 2002). VA revised the criteria for rating skin disorders on October 23, 2008; however, this new regulation relates to scars and specifically applies only to claims received on or after October 23, 2008. 73 Fed. Reg. 54708 (September 23, 2008). The Veteran has reported chronic eczema (rashes) and not necessarily scarring. The amended regulation did not result in revision of the rating criteria pertaining to rashes and there is otherwise a lack of evidence of scarring. Accordingly, the revisions to 38 C.F.R. § 4.118 do not necessarily affect diagnostic code 7806 as it pertains to the Veteran's appeal. A review of the relevant medical evidence since February 22, 2012 reflects various VA outpatient dermatological progress notes dated from August 2012 to May 2014. In particular, an August 2012 VA dermatology clinic note reflected the Veteran's complaint of pain with flares of her eczema on both feet. She also reported occasional pustules on both feet. On examination, the Veteran's bilateral lateral soles showed "collarettes of scale," mild peeling, with a few hyperpigmented 1-2mm macules. There was also one scaly macule on the right dorsal forearm. The assessment was pustular psoriasis, as the clinician suspected psoriasis rather than dyshidrotic eczema. A September 2012 VA dermatology clinic note identified the Veteran as using clobetasol with much improvement. On examination, the clinician noted that the Veteran's bilateral lateral soles showed "round collarettes of scale," mild peeling, and a lack of vesicles, bullae, or pustules. The assessment was history of dyshydrotic eczema vs. pustular psoriasis, currently mild, with only slight peeling of the lateral soles. The Veteran was instructed to continue to use clobetasol. A May 2013 Bay Area Dermatologist examination report noted findings of diffuse erythema and scaling on the hands and feet. The diagnosis was eczema. At the above noted June 2013 Board hearing, the Veteran reported that her eczema had worsened since last being evaluated on VA examination in February 2012. She testified that her eczema was now affecting both feet, the back of her hands, elbows, as well as her arm. She also testified that her eczema was manifested by burning and itching with pustules, and that she used topical medications to treat the condition. An August 2013 VA dermatology clinic note reflects a history of dyshidrotic eczema vs. pustular psoriasis and that the skin condition was well controlled on clobetasol. On examination, the Veteran's hands were within normal limits. Her left heal evidenced annular erythematous "plaque with scale." The clinician's assessment was history of dyshidrotic eczema vs. pustular psoriasis; continue clobetasol. Additionally, October 2013 and January 2014 VA primary care notes identified the Veteran as not suffering from rashes. The assessment/plan included dyshidrotic eczema/pustular psoriasis. The Veteran was noted as refusing to start new medicine as well as refusing "hydrophilic" and/or clobetasol ointment. A May 2014 VA dermatology clinic note reflects the Veteran's report that her skin disorder had broken out the previous week and that using hydrophilic ointment and clobetasol ointment in tandem had been helpful. Otherwise, the clinician commented that VA dermatology treatment notes reflected a history of minimal abnormal skin findings. On examination, the clinician identified rare deep seated vesicle and mild keratolysis on the right lateral foot. The Veteran's right hand evidenced mild keratolysis. Her trunk, head, and neck were clear. The assessment was keratolysis exfoliativa and mild resolving dyshidrotic eczema. In a report of May 2014 VA examination (DBQ), the examiner noted the Veteran's reported history of intermittent skin lesions ("coming and going") which were treated with topical medications. At the time of the examination there was no pain or itching of the hands or feet. Otherwise, the Veteran was noted not to have been using clobetasol on a regular basis. On examination, there was minimal eczema of the hands and feet with less than a 2 centimeter (cm) squared area (affecting more the left lateral foot and left thumb). The examiner reported that the total body area affected by the eczema was less than five percent as was the total exposed area. The Veteran's skin disorder was otherwise reported as not affecting her ability to work. The medical evidence of record since February 22, 2012 confirms the Veteran's complaints of recurring rashes of the feet and hands. The referenced private and VA dermatological clinical notes reflect the Veteran's use of topical steroid ointment to treat her symptoms. The clinical notes also reflect skin lesions, plaques, and/or patches located on the Veteran's hands and/or feet. None of the clinicians in the clinical notes identify the percent of the entire body effective or the percent of exposed areas affected by the Veteran's eczema/ pustular psoriasis. Evaluation of the Veteran's skin by the May 2014 VA examiner does not reflect the Veteran's eczema affects more than 5 percent of her entire body or more than 5 percent of exposed areas. Furthermore, while the Veteran has reported that her eczema does flare-up, the noted clinic notes dated since February 22, 2012, which include treatment during summer months, reflect the Veteran's eczema remaining confined to her feet and hands, except for a reference to one scaly macule on the right dorsal forearm in August 2012. Additionally, systemic therapy such as corticosteroids or other immunosuppressive drugs were not used to treat the Veteran's eczema. Since February 22, 2012, the Veteran's treatment for her eczema, as noted above, has consisted of using topical corticosteroid ointments. Such topical treatment is not akin to a course of systemic therapy. The Veteran has reported having steroid injections in the past, which could be akin to systemic therapy. However, the evidence does not reflect steroid injections during the course of the appeal period (since February 22, 2012) or otherwise a course of systemic corticosteroid therapy or the use of immunosuppressive drugs. The Board has considered the Veteran's implied argument that her eczema does encompass greater than five percent of her total body area and/or exposed surfaces. The Board, however, considers the findings on this issue by the May 2014 VA examiner to be more persuasive as he is considered competent to report such a finding. To the extent the Veteran feels the disability is more severe, the Board finds that his general assessment is less convincing than the clinical objective findings of record. Therefore, the Board has assigned greater probative weight to the VA examiner's finding related to body area/exposed areas affected by the service-connected eczema. Therefore, the preponderance of the evidence is against an initial, compensable rating for eczema since February 22, 2012. The Veteran's eczema has not been shown to cover greater than 5 percent of the entire body and/or exposed surfaces, or that the Veteran's eczema is treated with systemic therapy (such as corticosteroids or other immunosuppressive drugs). 38 C.F.R. § 4.118, Diagnostic Code 7806. As such, an initial, compensable rating for eczema since February 22, 2012 is not warranted under the rating criteria. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the AOJ refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. The Board finds credible the Veteran's complaints of pain, dryness, and itching associated with her skin disorder. Whether such symptoms are necessarily considered by the rating schedule under 38 C.F.R. § 4.118, Diagnostic Code 7806 is not clear. Assuming that the diagnostic criteria do not adequately describe the severity and symptomatology of the Veteran's service-connected eczema, the evidence does not demonstrate that the Veteran's eczema results in marked interference with employment or frequent periods of hospitalization. Thus, the Veteran's disability does not rise to the level of an exceptional or unusual disability picture that would warrant referral for an extra-schedular rating. Therefore, referral for extra-schedular consideration is not in order. Finally, 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 a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16(a), (b) (2013). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of her service-connected eczema. Furthermore, a review of the overall evidence does not reflect that the Veteran's service-connected eczema precludes employment. ORDER For the period since February 22, 2012, an initial, compensable rating for eczema is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs