Citation Nr: 1511516 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 12-33 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for a skin disability, currently rated at 0 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. E. Turner, II, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1991 to July 1993. The Veteran was discharged from the United States Marine Corps under conditions honorable for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Historically, the Veteran was service-connected for a skin disability July 10, 1993 and given a disability rating of 10 percent from that date. The Veteran filed for an increased rating in July 2008 and, after VA examination, was found to have a presentation of symptoms more closely approximating a 0 percent disability rating and his rating was reduced effective June 1, 2009. The Veteran did not appeal that reduction. FINDING OF FACT The Veteran's skin disability is manifested by coverage of less than 5 percent of total body area and treated only with topical over-the-counter medication. CONCLUSION OF LAW The criteria for a disability rating in excess of 0 percent for a service-connected skin disability have not been met. 38 U.S.C.A. § 1155 (2013); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided notice to the Veteran in April 2011 with respect to his claim for an increased rating for his skin disability. The Veteran received notice that informed him how disability ratings and effective dates are assigned, including specifically addressing dermatitis or eczema. As the contents of the notice letter fully comply with the requirements of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159, the Board concludes that VA satisfied its duties to notify the Veteran. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran has not identified any records aside from those that are already associated with the claims file. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA also satisfied its duty to obtain a medical examination. In May 2011 and February 2013, VA provided medical examinations to evaluate the Veteran's service-connected skin disability. The examinations were adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted clinical evaluations of the Veteran, and provided adequate discussions of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Increased Rating for a Skin Disability The Veteran is service-connected for a skin disability. He asserts that his skin disability affects him more severely than indicated by the disability rating schedule. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection, separate disability ratings, known as staged ratings, may be assigned where "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, 511 (2007). 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. See 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2014). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Dermatitis or eczema is rated under Diagnostic Code (DC) 7806. A 0 percent disability rating is warranted for dermatitis that affects less than 5 percent of the entire body or less than 5 percent of exposed areas. It is also warranted where no more than topical therapy was required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. A 10 percent disability rating is warranted for dermatitis that affects at least 5 percent, but less than 20 percent of the entire body, or affects at least 5 percent, but less than 20 percent of exposed areas. It is also warranted where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than 6 weeks during the past 12-month period. Id. A 30 percent disability rating is warranted for dermatitis where the condition affects 20 to 40 percent of the entire body or if it affects 20 to 40 percent of exposed areas. It is also warranted where 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 12 month period. Id. A 60 percent disability rating is warranted for dermatitis where the condition affects more than 40 percent of the entire body or affects more than 40 percent of the exposed areas. It is also warranted where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12 month period. Id In the present case, the Veteran asserts that his skin disability has worsened since he was last evaluated and that his condition is in remission each time he has been examined. (see Notice of Disagreement dated August 14, 2012). The Veteran's father provided a lay statement in April 2011 describing the condition of the Veteran's hands and feet as dry, cracked, and sometimes prone to bleeding. The Veteran's father stated that the Veteran had trouble doing major repairs in his usual occupation of automotive mechanic due to the condition of his hands. The next month, in May 2011, the Veteran presented for a VA examination of his skin condition. The VA examiner reviewed the Veteran's subjective medical history and conducted a clinical examination. The VA examiner indicated that the Veteran reported that his skin condition was intermittent with flare-ups in winter. The Veteran further reported that he was not being treated for his condition. The VA examiner conducted an objective examination and found the Veteran had a callous on his right foot affecting 0.1 percent of his entire body and no other abnormalities. The VA examiner indicated that, for the Veteran's service-connected conditions of dermatitis, hypertrophic papules, pitted keratosis and plantar warts, hands and feet, the diagnosis is continued. The Veteran was noted to be asymptomatic on the day of the exam. The examiner opined that the impact on occupational and daily activities would be mild to moderate during flare-ups. The examiner noted that "the established condition of dermatitis, hypertrophic papules, pitted keratosis and plantar warts is quiescent at this time [and] there were incidental findings of right foot callus formation". In November 2012 the Veteran stated that "when [his] skin problems are at the worst are the times when your doctors don't see me". The Veteran stated he was advised at the VA clinic to use over-the-counter lotions but further stated that topical treatment was ineffective. The Veteran offered to go to the doctor that month so [the doctor] could see what is wrong. (see VA Form 9 dated November 15, 2012). In response to the November 2012 statement, the Veteran was afforded another VA examination in February 2013. The VA examiner reviewed the Veteran's medical history and conducted a clinical evaluation. The examiner noted that, although the claims file was not sent, the VA records were reviewed. The examiner further noted that the Veteran had not been treated or seen by a dermatologist in the VA from 2000 to the date of the VA exam, although he was being treated by a VA podiatrist for porokeratosis and plantar fibroma. The examiner noted that the Veteran reported that from September to March his hands are dry, cracking, painful, and sometimes bleed, that he uses over-the-counter lotion multiple times per day, and that sometimes he has trouble using his hands. The VA examiner noted that the Veteran reported that the he also had dry cracking feet and that he sometimes has trouble walking. The examiner noted that, regarding the trouble walking, the Veteran had non-service-connected bunions and hammertoes. The 2013 VA examiner noted that the Veteran used constant to near constant topical lotion in the past 12 months and that the only observed skin condition was dermatitis over less than 5 percent of his entire body, and none over any exposed area. Describing the dermatitis, the VA examiner noted that the Veteran's hands exhibited "calloused thickened palms and palmer surface of fingers [and] the skin is very dry with some cracking; no blisters, pitting, redness, papules, peeling [was] noted". The 2013 VA examiner described the Veteran's feet as "moist [with] plantar fibroma noted on the right 1st metatarsophalangeal (MTP), right 4th MTP, and left 1st MTP [and] two small pits noted in the right sole, 1 small pit noted in the left sole which are mildly tender to palpation". The VA examiner noted that the functional impact of the Veteran's service connected condition was that sometimes his hand condition limited his ability to use tools. The VA examiner noted the Veteran was currently unemployed but did not opine as to the cause. The VA examiner further remarked that the Veteran currently had eczematous dermatitis of the hands with chronic symptoms as noted above, and plantar fibromas/porokeratosis and pitted keratosis of both feet with symptoms currently being treated by podiatry. While there is evidence that the Veteran is still troubled by his service connected skin conditions, the results of the May 2011 and February 2013 VA examinations do not support the Veteran's claim for an increased rating for those skin conditions. The 2013 VA examiner specifically documented the particular symptoms of dry, cracked, painful hands that the Veteran finds distressing but indicated that the totality of all of the Veteran's skin problems covered less than 5 percent of his entire body and were treated by topical lotion only; the criteria for a 0 percent disability rating. There is no evidence that the Veteran's skin disability affects an area of at least 5 percent but less than 20 percent of his entire body, or at least 5 percent but less than 20 percent of any exposed areas affected, as would be required for the next higher rating of 10 percent. Additionally, there is no evidence that the Veteran requires corticosteroids or immunosuppressive drugs during any period, including flare-ups as would be required for the next higher rating of 10 percent. Although the Veteran stated that he experiences exacerbations of his skin disability when he is not being examined, he has not, as of yet, sought treatment from the VA or a private medical provider during these periods. Additionally, although the Veteran does not seek VA medical treatment for his hands and has not done so since 2000, the Veteran does actively participate in VA medical care for several other unrelated medical conditions. It is reasonable to expect that, considering the Veteran's documentation of treatment regarding his other medical conditions, the Veteran would seek medical treatment during service-connected exacerbations and that treatment and any associated medications would be documented. The Board considers the absence of such documentation concerning the severity of the Veteran's symptoms probative. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) (the absence of records is pertinent where it is reasonable to expect that a record of an event would exist). Consequently, the Board finds that the preponderance of the evidence shows that the Veteran did not have exacerbating symptomatology to a degree worse than documented by the February 2013 VA examiner, and that the 2013 VA examination provides an adequate depiction of the severity of the Veteran's current disability. The schedular rating criteria are clear regarding the required severity of symptomatology the Veteran must meet in order to achieve a higher disability rating. Currently, the Veteran does not meet the criteria for the next higher rating and is properly rated at 0 percent for his service-connected skin disability. Although the Veteran may feel that his particular disability is worse than indicated and that he is deserving of a higher rating, he lacks the medical training to identify a specific level of disability of his skin disability according to the appropriate diagnostic codes. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 517(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the Veteran's issue on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's VA examinations support a finding of 0 percent disability rating and, other than his contention that he is more affected by his disability than currently rated, there is no other objective medical evidence concerning the severity of his skin disability. In fact, in VA treatment notes between July 2011 and October 2012, the Veteran reported that he was rebuilding and polishing a boat, the he was able to install a CD player in his truck, that he had a pressure washing business, and that he was looking forward to hunting season. These activities are indicative of a Veteran who has functionality of his hands and is properly assessed under the schedular disability rating system. Both VA examiners noted the presence of the skin disability and both examiners documented that the area covered and the type of treatment the Veteran received was consistent with the 0 percent disability rating. Thus, the Veteran's impairment is properly contemplated by the schedular criteria. By indicating occupational and social impairment due to mild to moderate transient symptoms, the Veteran's functional limitations were described in the context of occupational effects and activities of daily life. See Martinak v Nicholson, 21 Vet. App. 447, 455 (2007). 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 hands and feet are worse than they appear when he attends examinations. As was explained in the merits decision above in denying a higher rating, the criteria for a higher schedular rating were considered, but the rating assigned were upheld because the rating criteria are adequate. 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 Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (2014). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 0 percent for a skin disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs