Citation Nr: 1510333 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 13-09 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial compensable rating for eczematous dermatitis. 2. Entitlement to service connection for a right hand or finger disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from September 2002 to September 2006. In July 2014, he testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript is included in the claims file. FINDINGS OF FACT 1. During the period on appeal, a skin disorder has been shown to cover less than 5 percent of the entire body and less than 5 percent of exposed areas affected, and has required no more than topical therapy. 2. Residual scarring of the right third finger is the result of an in-service injury; there is no other right hand or finger disorder related to service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for eczematous dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806 (2014). 2. Residual scarring of the right third finger scar was incurred in service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for a Skin Disorder Disability ratings 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 his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran's skin disorder is rated under DC 7806. Under DC 7806, a 10 percent rating is assigned for 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; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Zero percent is assigned for dermatitis or eczema with 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. In this case, as reflected in a February 2010 statement, the Veteran asserts that he currently has short outbursts of "hives and scratching in [his] lower legs and upper arms," as well as scars caused from excessive scratching that prevents him from wearing shorts or t-shirts. However, a compensable rating for a skin disorder is denied. In a February 2010 VA examination, the Veteran reported developing a rash on both legs in service, which had since spread to other parts of his body, including his arms and chest area. He reported being treated in service with a variety of topical creams including hydrocortisone cream, and that, since onset, it had been a chronic problem that had not resolved but was not progressive. He reported that it was intermittent in frequency and usually occurred one to two times a month, a week in duration. He reported not using any medication at the time, but using hydrocortisone cream over the past 12 months. He denied systemic treatment. He reported difficulty sleeping at night due to the itching involved, but denied functional impairment. On examination, there were multiple scattered, hyperpigmented, scaly lesions noted on his lower extremities that were superficial with varying diameters and irregular borders. They were scaly and had a hyperpigmentation. In total, they occupied less than 2.5 percent of the total body surface area and zero percent of exposed area. The diagnosis was eczematous dermatitis without functional impairment. Thus, on examination, the Veteran was shown to have had eczematous dermatitis with less than 5 percent of the entire body and less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. Therefore, a higher rating under DC 7806 is not warranted. The Board finds the February 2010 VA examination report to be highly probative. The examiner was a physician who considered the Veteran's subjective history and complaints and fully examined him. This report is the only competent, objective evidence regarding the severity of the skin disorder during the appeal period and he has not identified any other, including any treatment records. The Veteran contends that the examiner asked to see only his legs and that he offered to show the examiner his upper body, but was told that it was unnecessary. He maintained that his service treatment records show that the skin disorder also affected the upper body and arms, as well as the lower legs and thighs. A review of the examination report shows that the Veteran related that his skin disability was intermittent in frequency and usually occurred one to two times a month a week in duration. The examiner diagnosed dermatitis and the Veteran did not report at that time, or at any subsequent time, that the examination was conducted during a period of intermittent relief from his skin symptomology. See Bowers v. Brown, 2 Vet. App. 675, 676 (1992). There is a presumption that VA has chosen a person who is qualified to provide a medical opinion in a particular case, although that presumption is rebuttable. Nohr v. McDonald, 27 Vet. App. 124, 131-2 (Vet. App. 2014). In this case, the examining physician was specifically instructed to perform a skin examination in accordance with VA rating criteria. The examiner recorded the Veteran's reported history that his skin disability had spread from his legs to his arms and chest area, and performed a skin examination, finding only skin lesions the lower extremities, and discussing what percentage of total body surface area and exposed body surface area the Veteran's skin disorder covered. There is no indication that any affected area of the Veteran's body was not examined by the VA examiner or that the Veteran had any lesions on the upper part of his body at the time of the examination. Under these circumstances, the Veteran's assertions do not rebut the presumption that the examining physician adequately executed his duties in providing a VA examination. The Veteran further testified that due to scratching his dermatitis when it itched, the areas affected by his dermatitis had scarring. However, the February 2010 examination of the affected areas of his skin noted lesions but no residual scarring. He has neither submitted nor identified any competent and objective current evidence of scars due to scratching of his dermatitis. The Board thus finds February 2010 VA examination report, which does not indicate any scarring of affected areas of the skin, to be more probative than the Veteran's assertions of general scarring of the affected areas. The Veteran has pointed to his service treatment records as indicating the severity of his skin disorder. However, such records, which reflect dermatitis of the arms and legs in 2005 that improved with topical cream treatment, do not address the question of the current severity. Similarly, statements from his service comrades, received in February 2010 and March 2013, describe his skin condition in service, which ended in September 2006. However, none of these statements relate to the condition of the skin disability during the appeal period and are of little probative value in establishing the current rating. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. The rating code discussed above specifically pertains to eczema and dermatitis. The skin disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Next, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the medical professionals, such as area of involvement and itchiness, are "like or similar to" those explicitly listed in the rating criteria, which considers symptoms such as the percentage of affected area and use of topical or systemic medication. Mauerhan, 16 Vet. App. at 443. Moreover, the Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his skin disability is more severe than is reflected by the assigned rating. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities, and referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected skin disability. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, an initial compensable rating for eczematous dermatitis is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Fenderson. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. As such, the appeal is denied. Service Connection for Right Finger/Hand Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his January 2010 claim and a February 2010 statement, the Veteran asserts that, during service in 2003, while working in a freezer, a shelf holding about 50 pounds fell on his right hand and cut his right knuckle, and that a doctor stitched it, but that there was still a scar and possibly an enlargement of his right middle knuckle. He has asserted that, when the weather is cold, his right knuckles start to hurt and sometimes his right hand is shaky, and that ever since that incident there has always been a weak, fatigued feeling in his right hand when holding something heavy. In this case, service connection for a right third finger scar is granted, but service connection for any other right hand or finger disorder is denied. Service treatment records reflect that the Veteran incurred a right hand finger injury in April 2003, when he was found to have had a cut on the right hand middle finger, noted to be a 20-millimeter long laceration. He was given a vertical stitch to the right knuckle area, was noted to have had full range of motion, and had no other visible or physical discrepancies noted at the time. The assessment was open wound of the finger and he was released to full duty. Service treatment records reflect no further complaints or findings related to the right fingers, despite reflecting complaints and treatment for other medical problems. At the time of his July 2006 separation from service, the Veteran was asked if he had now or had ever had impaired use of the hands, and he answered that he did not. He reported no history of any finger problems, while reporting histories of numerous other medical problems, including back pain, ankle pain, vision loss, indigestion, dermatitis, headaches, chest pain, palpitations, and high blood pressure. Moreover, the record reflects no residual disability of the Veteran's in-service finger injury other than a right third finger scar. In a January 2014 VA examination, the Veteran reported no flare-ups impacting the function of the hand. There was no limitation of motion or evidence of painful motion for any fingers or thumbs, and no additional limitation of motion with repetitive use testing. There was no functional loss or functional impairment of the fingers or thumbs, no tenderness or pain to palpation for joints or soft tissue of either hand, including thumbs and fingers, and hand grip strength was full on both sides. A shallow scar on the dorsal aspect of the third metacarpophalangeal (MCP) joint of the right hand, which was superficial, stable, and nontender, with no loss of mass and no involvement with the joint, measuring 1 cm X 1 cm was noted. The examiner opined that when there was a flare-up or repetitive motion or frequent use, there was no additional loss of range of motion or joint function due to pain, fatigue, or lack of endurance with regard to the right hand. The examiner diagnosed right finger laceration, and stated that the Veteran had a small, non-painful scar over the third MCP joint that did not interfere with any hand function. This examination is highly probative. The examiner was a medical expert who reviewed the record and examined the Veteran's right hand thoroughly. Also, there is no medical opinion or other such competent, objective, and probative evidence contradicting the VA examiner's findings or otherwise establishing any clinically ascertainable right finger disability besides a scar. The Board notes the Veteran's statements and assertions, as described above, as well as his July 2014 testimony before the Board indicating that he believed that, at the time he incurred a laceration of his finger in service, he cracked the knuckles of the index and middle finger of the right hand, and that his fingers sometimes felt "jammed in" when typing. The Board also notes the March 2013 statement of the Veteran's in-service supervisor, D.S., indicating that the Veteran had trouble keeping his right hand normally steady throughout the time they served, and that when he would hold the line on the ship he would complain that his right hand was weak and would have sharp pain. The Board has weighed the Veteran's statements and his service buddy's statements against the contemporaneous service treatment records and finds the service treatment records reflecting no complaints or treatment of right finger problems following the initial April 2003 treatment more probative. The service treatment record show complaints and treatment for other medical problems but not the right finger. Also, in the July 2006 Report of Medical History, he denied having an impaired use of the hands, while reporting histories of numerous other medical problems, as noted above. Moreover, the record does not reflect that any in-service injury has resulted in a current disability of the right hand or fingers besides a scar. The Veteran and his service buddy are competent to report matters within their own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr, 21 Vet. App. at 308-09. However, in this case, the determination of whether the Veteran has a medical disorder of the right hand or fingers is one that is medical in nature, and requires medical expertise to make. Therefore, neither the Veteran nor his buddy is competent to diagnose a disorder of the right hand or finger. As such, their statements are greatly outweighed by the expert medical report of the January 2014 VA examiner. Thus, while the record reflects complaints by the Veteran of right finger pain, it does not reflect that he had a diagnosed right hand or finger disorder at the time of his January 2010 claim for benefits or that he has had one at any time since. Pain alone does not constitute a disability for service connection purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), aff'd sub nom; Sanchez- Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In sum, resolving reasonable doubt in the Veteran's favor, the Board finds that residual scarring of the right third finger is the result of in-service injury. However, the evidence weighs against a finding that he has any other right hand or finger disorder related to service. Accordingly, service connection for a right third finger scar is granted, but service connection for another right hand or finger disability is denied. Finally, under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided by letter dated in January 2010. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and statements submitted by acquaintances of the Veteran have been obtained. Also, he was provided VA examinations of his claimed disabilities in February 2010 and January 2014. These examinations and their associated reports were adequate. As discussed, along with the other evidence of record, they provided sufficient information and sound bases for decisions on the claims. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the July 2014 Board personal hearing, the VLJ complied with these requirements. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Thus, the VLJ sufficiently complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and any error in notice provided during the Veteran's hearing was harmless. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An initial compensable rating for eczematous dermatitis is denied. Service connection for residual scarring of the right third finger is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs