Citation Nr: 1510442 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 08-31 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial compensable rating for dyshidrosis of the bilateral hands and feet. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1981 to May 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah as part of the Benefits Delivery at Discharge (BDD) program. The Board notes that the purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. In November 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing (Videoconference). A hearing transcript has been associated with the record. The Board remanded the instant matter in January 2013. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand order with regard to the claims for a higher rating for dyshidrosis of the bilateral hands and service connection for tinea pedis and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In September 2013, the AOJ granted service connection for dyshidrosis eczema of the feet, claimed as tinea pedis, and combined this disability with service-connected dyshidrosis of the bilateral hands. The initial noncompensable rating remained assigned. This appeal was processed using the Virtual VA paperless claims processing system. In addition to the Virtual VA paperless claims file, the Veteran also has an electronic Veteran Benefits Management System (VBMS) paperless file. A review of the documents in the VBMS file reveals that, with the exception of a January 2015 Informal Hearing Presentation submitted by the Veteran's representative, the documents are either duplicative of those contained in the Virtual VA paperless file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim decided herein have been accomplished. 2. For the entire appeal period, the Veteran's dyshidrosis of the bilateral hands and feet have affected less than five percent of his entire body and less than five percent of exposed areas, and has been treated only with topical lotion rather than systemic corticosteroid therapy. CONCLUSION OF LAW The criteria for an initial compensable rating for dyshidrosis of the bilateral hands and feet have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.118, 7806 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). With respect to the propriety of the assigned rating for the service-connected dyshidrosis of the bilateral hands and feet, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran's claim for service connection was granted and the initial rating was assigned in the June 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the Board notes that there has been no allegation of prejudice from any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the reports of the VA examination, as well as the Veteran's VA treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the January 2013 remand directives by requesting updated VA treatment records, conducting a VA examination and the issuing a supplemental statement of the case, and, as such, that no further action is necessary in this regard. See D'Aries, supra. Additionally, the Veteran was afforded VA examinations in May 2007, February 2009, August 2012 and July 2013 to determine the nature and severity of his dyshidrosis of the bilateral hands and feet. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected dyshidrosis of the bilateral hands and feet as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, neither the Veteran nor his representative has alleged that his disability has worsened in severity since the July 2013 VA examination. Rather, they argue that the evidence reveals that the Veteran's disability has been more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim for a higher rating and no further examination is necessary. The Board points out that that the Veteran was provided the opportunity to orally set forth his contentions during his hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the November 2012 hearing, the undersigned enumerated the issues on appeal, to include the matter of a higher rating for the disability here at issue. The Veteran provided testimony regarding his symptoms and his current treatment. In addition, the Veteran's representative provided argument in support of the claim. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Although the presiding Veterans Law Judge did not explicitly suggest the submission of any specific evidence, additional, pertinent evidence was added to the record pursuant to the subsequent remand; hence, any omission in this regard was not prejudicial to the Veteran as the defect was cured. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that Board hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on any of the claim. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Claim The Veteran generally contends that a higher rating is warranted for his service-connected dyshidrosis of the bilateral hands and feet due to the severity of his symptoms. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Historically, the Veteran's service-connected dyshidrosis of the bilateral hands and feet have been rated by analogy under the diagnostic codes for an unlisted skin disability and eczema or dermatitis. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the neurological system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002, see 67 Fed. Reg. 49490 -99 (July 31, 2002) and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008, although a veteran may request evaluation under the new criteria. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed the claim for service connection in April 2007. Therefore, the post-2002 and pre-October 2008 version of the schedular criteria is applicable; the Veteran has not requested evaluation under the criteria as revised effective in 2008. Dermatitis or eczema that affects five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected; or requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating. Such condition that affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating. Such condition that affects more than 40 percent of the entire body or more than 40 percent of exposed areas; or requires the use of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, 7806. A May 2007 VA general medicine examination report reflects the Veteran's reports of a dry, scaly non-pruritic rash that varied in severity. Treatment included the use of moisturizing lotion. Physical examination of the hands revealed two small scaly lesions on the fingers that measured two mm in diameter and was found to impact less than one percent of the Veteran's exposed area and less than one percent of his total body area. A foot rash was not found. A January 2008 VA treatment note reflects the Veteran's complaints of a right foot fungal rash. Physical examination was negative for a rash and an assessment of a right foot fungal rash was made. A February 2009 VA examination report reflects the Veteran's complaints of episodes of skin peeling that occur once every quarter and last one to two weeks. He treated his symptoms with hand lotion and by wearing plastic gloves. The use of corticosteroids or immunosuppressive drugs were denied. Physical examination revealed very superficial, flat lesions on the hands that were without adhesion to the underlying tissue, elevation, depression, infection, inflammation, ulceration, abnormal pigmentation or drainage. The lesions were noted to be much less than one mm in greatest diameter and were not associated with any surrounding tissues. These lesions affect less than one percent of the Veteran's exposed body area and less than one percent of his total body area as the palmar surface of the hands encompass about three of the hands, bilaterally. The examiner described an accompanying photograph of the left hand, which showed present lesions all measuring less than one mm and appeared to be flat and whitish. An August 2012 VA skin examination report reflects the Veteran's complaints that he "always" had peeling white spots on the palms of his hands as well as an one or two on the dorsal surface of the hands on occasion. Other affected body areas, itching or painful areas or limitations in motion or strength were denied. Treatment was reported to include the constant or near constant use of over-the-counter moisturizers for the hands. Scarring or disfigurement of the head, face or neck, benign or malignant skin neoplasms, systemic manifestations due to any skin diseases, treatments or procedures other than systemic or topical medications in the past 12 months for exfolitative dermatitis or papulosqamous disorders were denied. Physical examination revealed dyshidrosis eczema on the palmer surface of the hands only. Eczema was found to encompass less than five percent of the Veteran's total body area and less than five percent of his exposed body area. Accompanying photographs were noted to show multiple dry white one mm lesions on the palmer surfaces of the hands and fingers. During a November 2012 hearing, the Veteran testified that he had patches that peeled on his palms and that his heels were dried out and cracked. The use of steroids or immunosuppressant drugs were denied. Photographs of the Veteran's feet, which were dated in December 2012, appear to show dry, cracked heels as well as reddish lesions near his ankles. A July 2013 VA skin Disability Benefits Questionnaire (DBQ) report reflects the Veteran's complaints of outbreaks on his hands that occurred every two to three months that lasted for a couple of weeks and that such were treated with over-the-counter Lubriderm lotion. He further reported constant outbreaks on his feet, that he used over-the-counter Lubriderm to treat the outbreaks and that he had never used steroid creams for the outbreaks. He also reported the constant or near-constant use of over-the-counter Lubriderm. Skin conditions causing scarring or disfigurement of the head, face or neck, benign or malignant skin neoplasms, systemic manifestations due to any skin diseases, or treatments or procedures other than systemic or topical medications in the past 12 months for exfolitative dermatitis or papulosqamous disorders were denied. Physical examination revealed scattered punctate discrete erythematous-based whitish scaled macules on the palmer surfaces of the hands as well as a few similar scattered erythematous-based whitish scaly macules on the dorsum of the feet, toes and interdigital spaces. The soles of the feet do not have any yellowish scale but that there was some dry skin (normal variant) on the heels. Eczema was found to encompass less than five percent of the Veteran's total body area and less than five percent of his exposed body area. The examiner noted that the dry skin on the Veteran's feet were of a normal variant and were not pathologic. The record does not support a compensable rating for dyshidrosis of the bilateral hands and feet at any point during the appellate period. In this regard, there is no competent evidence of record showing that, at any time during this appeal, that the Veteran's dyshidrosis of the bilateral hands and feet affected at least five percent of his exposed body or total body area, or that his condition has been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. Additionally, while the record shows that the Veteran's dyshidrosis of the bilateral hands and feet has been treated with topical over-the-counter moisturizers, such treatment does not qualify as "systemic therapy" as systemic therapy involves treatment via oral or intramuscular delivery. In this regard, 'systemic' is defined as pertaining to or affecting the body as a whole, and 'therapy' is defined as the treatment of disease. See Dorland's Illustrated Medical Dictionary (30th ed. 2003). In light of such definitions, it is clear that systemic therapy requires the use of medications, in this case such must either be corticosteroids or immunosuppressive drugs that treat the body as a whole. Lubriderm is topical in nature only and is used for treatment of the Veteran's skin. Therefore, the Board finds that such does not qualify as systemic therapy and a compensable rating is not warranted on this basis. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report skin symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 47. He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's skin symptoms have been provided by the medical personnel who examined him during the current appeal and rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board finds these records to be more probative than the Veteran's general complaints of increased symptomatology. See Cartwright, supra (interest in the outcome of a proceeding may affect the credibility of testimony). The Board has considered whether staged ratings under Fenderson are appropriate for the Veteran's service-connected dyshidrosis of the bilateral hands and feet; however, the Board finds that his symptomatology has been stable throughout the appeals. Therefore, assigning a staged rating for such disability is not warranted. Additionally, the Board finds that at no pertinent point have the dyshidrosis of the bilateral hands and feet the been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to each disability currently under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the dyshidrosis of the bilateral hands and feet. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, the Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional skin impairment that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. The Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). However, the Veteran does not allege, and the record does not show, that his service-connected dyshidrosis of the bilateral hands and feet has rendered him unemployable at any time during the course of the appeal. Therefore, further consideration of a TDIU is not necessary. For all the foregoing reasons, the Board finds that there is no basis for a compensable, or staged, rating for dyshidrosis of the bilateral hands and feet, pursuant to Fenderson, and that the claim for a higher rating must be denied. The Board finds that the preponderance of the evidence is against assignment of any higher or additional rating for the disability under consideration. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial compensable rating for dyshidrosis of the bilateral hands and feet is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs