Citation Nr: 1516036 Decision Date: 04/14/15 Archive Date: 04/21/15 DOCKET NO. 13-091 36A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), anxiety disorder, and depression. 2. Entitlement to an increased disability rating for service-connected dermatitis, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1986 and from July 1989 to April 1992. He is the receipt of the Southwest Asia Service medal with three bronze service stars. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has recharacterized the acquired psychiatric disability, including PTSD, depression, and anxiety disorder, claim on appeal to more accurately reflect the nature and scope of the claimed disability. The issue of an acquired psychiatric disability, including PTSD, depression, and anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Dermatitis is manifested by recurring itchy rashes covering less than 20 percent of the entire body, with no treatment consisting of systemic therapy. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the increased rating claim on appeal, the Veteran filed his claim seeking an increased rating in March 2009. A letter dated April 2009 satisfied the duty to notify provisions concerning this increased rating claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was informed of the types of evidence that could substantiate his increased rating claim, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated for his service-connected disability and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary. Additionally, the April 2009 letter provided the Veteran with the Diagnostic Codes used to rate his service-connected disability. He was also notified of his opportunity to provide medical and lay evidence relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (which also stipulates that the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life). Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied. No further due process development of notification of the increased rating claim is required. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA and private treatment records. Also, the Veteran has been afforded VA examinations in November 1997, June 2000, and July 2009, as to the increased disability claim. Particularly, the July 2009 VA examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinion that is consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned a 30 percent disability rating for his service-connected dermatitis throughout the appeal period. As will be explained below, the Board finds that increased disability rating is not warranted at any point during the appeal period. Historically, in February 1998, the RO granted service connection for a skin disability and assigned a 10 percent rating effective September 23, 1997, the date of his claim for service connection. The Veteran expressed disagreement with the initial disability rating and perfected a substantive appeal. During the pendency of the February 1998 appeal, the RO assigned a 30 percent disability rating, effective September 23, 1997. In an August 1998 statement, the Veteran withdrew his appeal. In an August 2000 rating decision that continued the Veteran's 30 percent disability rating; the RO recharacterized the Veteran's skin disability to allergic contact dermatitis. In March 2009, the Veteran filed his claim for an increased rating. Initially, the Veteran's dermatitis was evaluated under the old criteria for a skin disorder. However, as of October 23, 2008, revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, because the Veteran's claim was received after that date (March 2009), these revisions do apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). As will be discussed further below, the Veteran's dermatitis will be evaluated under the new criteria, 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). The rating criteria for dermatitis or eczema provides that a 10 percent disability rating will be assigned where 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 intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The maximum 60 percent disability rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). Here the Veteran asserts that his service-connected dermatitis is more severe than the current 30 percent evaluation indicates. See Veteran's claim dated March 2009. In particular, he has described itching rashes that recur in patches. Id. A February 2009 VA outpatient treatment record shows that the Veteran has continued to seek treatment for his eczema and chronic otitis externa. He was prescribed ear drops for his chronic otitis extern and triamcinolone for his eczema. The Veteran was afforded a VA examination in July 2009; at which time, the Veteran was diagnosis with dermatitis. The examiner described the Veteran's skin disability history as "pruritic patches that start out as macrovesicles." Further, the VA examiner reported that the Veteran's dermatitis progresses to scaling and "rarely wet dermatitis." Intermittent outbreaks occur on the Veteran's elbows, ear canals, hands, knees, thighs, and groin. Over the past six months the Veteran's dermatitis treatment plan consisted of triamcinolone, topical corticosteroid cream. Physical examination revealed slight inflammation and peeling in the ear canals. The examiner described mild inflammation and slight peeling occurring on the elbows, with larger areas on the knees and thighs. Minimal involvement occurring on the hands was noted. The examiner stated that more than five percent of exposed areas and less than 20 percent of the total body area was affected. In an August 2009 VA form 21-414 (consent to release information form) the Veteran stated that he seeks treatment for his skin condition; further, his treatment plan consists of ear drop and a topical cream for his skin rashes. Private medical reports obtained reflect treatment in 2009, but no showing of outbreaks of skin problems or an increase in severity of skin disability. The Veteran does not meet the 30 percent criteria under the new skin regulations, 38 C.F.R. § 4.118, Diagnostic Code 7806 (2014). To this end, the July 2009 VA examiner stated that more than five percent of exposed areas and less than 20 percent of the total body area was affected. Moreover, the Veteran was prescribed a topical corticosteroid, which is antifungal or antibiotic in nature; thus, there is no indication that he was treated with systemic therapy during this appeal period. Although, the Board finds that the Veteran does not meet the 30 percent criteria based on the medical evidence; the Board will not disturb the assigned 30 percent rating that was initially evaluated under the old skin regulations. Under the current skin regulations, the evidence of record does not show that the Veteran's dermatitis meets the 60 percent rating at any time during the appeal period. As such, there is no evidence of record to suggest that the Veteran's dermatitis has encompassed an area of 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Although the Veteran is competent to provide his complaints and observations concerning his skin disability, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 1994. The Veteran's contentions in support of an increased disability rating are not supported by the finding of the July 2009 examiner who specifically considered the Veteran's lay assertions and any such inferences contained in the record in rendering the opinion. Specifically, the examiner considered the Veteran's treatment plan that includes a topical corticosteroid. The Veteran has not claimed and treatment records do not reflect any increase in skin pathology since the 2009 VA examination. Therefore, the Veteran's statements are outweighed by the more probative medical evidence which was based on the VA examination and as sufficient information was provided for the Board to render an informed decision. Finally, the Board has considered the applicability of other Diagnostic Codes pertaining to the skin. Here, the Veteran does not have any disfigurement or scars. Therefore, his skin disorder is evaluated as dermatitis, which is expressly contemplated by the Diagnostic Code applied above. 38 C.F.R. § 4.118, Diagnostic Code 7806(2014). The Board finds that no other diagnostic codes are applicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (the choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). Accordingly, the criteria for a rating higher than 30 percent for the Veteran's service-connected dermatitis has not been demonstrated throughout the period considered in this appeal, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). III. Additional Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension 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. To this end, it is undisputed that the Veteran's dermatitis has had an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2014). Here, the Veteran's complaints of recurring itching rashes are contemplated by the criteria discussed above. 38 C.F.R. § 4.118, Diagnostic Code 7806. As such, the diagnostic criteria adequately describes the severity and symptomatology of the Veteran's dermatitis. Additionally, the evidence does not demonstrate that the Veteran's dermatitis 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 warranted. 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 (2014). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his dermatitis. Furthermore, a review of the overall evidence does not reflect that the Veteran's service-connected dermatitis precludes employment. ORDER Entitlement to an increased disability rating for service-connected dermatitis, currently evaluated as 30 percent disabling is denied. REMAND The Veteran asserts that he developed an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depression, that began during his service in the Persian Gulf. See, e.g., Veteran's notice of disagreement (NOD) dated April 2010. Specifically, he contends that while he was stationed in Saudi Arabia during the Desert Storm, he endured SCUD missile attacks and activation of chemical detectors. See e.g., Veteran's claim dated March 2009 and Veteran's NOD dated April 2010. Further, he required "nerve agent pills" prior to certain tasks during his military service. Id. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2014); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The regulation further requires the diagnosis to be in conformance with Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV). See 38 C.F.R. §§ 3.304(f); 4.125(a) (2014). If, however, the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In any event, and in this regard, the Board notes that recent regulatory amendments have changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to a veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of a veteran's service; and 4) there is no clear and convincing evidence to the contrary. Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but which have not been decided by the Board as of July 13, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). As such, they are applicable to this case. Here, the Veteran asserts that he developed a psychiatric disorder to include PTSD, depression, and anxiety disorder as a result of stressful experiences during his military service, including seeing dead and wounded soldiers and fear of hostile military activity while he was stationed in Southwest Asia. See, e.g., Veteran's NOD dated April 2010. Additionally, he stated that his camp was frequently on alert due to SCUD missile attacks and the activation of chemical detectors. Id. To this end, the Veteran's DD-214 shows that he served in Kuwait. He also served in Iraq. See Office of the Secretary of Defense letter dated July 1997. The Veteran's STRs are negative complaints, treatments, or diagnosis of any acquired psychiatric disorder. In a VA examination in August 2009, the VA examiner reported that the Veteran exhibits a moderate level of depression and anxiety. He has panic attacks that "are quite disruptive but not disabling." The Veteran was diagnosed with anxiety disorder not otherwise specified (NOS). The VA examiner indicated that the Veteran met the criteria for a mental disorder pursuant to the DSM-IV criteria. The VA examiner opined that the Veteran's anxiety disorder is not caused or a result of his military service. The VA examiner reasoned "the development of an anxiety disorder has an onset years after his discharge from the military." In a March 2010 submitted statement, the Veteran's private counselor stated that the Veteran continues to have flashbacks of his experiences during his service in the Dhahran, Saudi Arabia Desert Storm. Further, she stated that the Veteran has used alocohol to self-medicate, which tends to support the Veteran's delay onset of PTSD. The August 2009 VA opinion does not include a complete, thorough rationale for the negative nexus opinion rendered; and, the opinion did not take into account the Veteran's lay statements regarding the onset of symptoms. Additionally, since the August 2009 VA examination, a private counselor's letter and the Veteran's contentions show a suggestive diagnosis of PTSD. As such, this claim presents certain medical questions concerning nexus, which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2014) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Moreover, an examination is needed to clarify the Veteran's diagnosis and obtain an opinion to determine whether any psychiatric disability is etiologically related to his period of active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, on remand, any pertinent records of ongoing treatment should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Obtain the appropriate release of information forms where necessary, procure any records of outstanding private treatment that the Veteran has recently received. Obtain all VA treatment records since June 2009 and associate any records obtained with the claims file. 2. Thereafter, the RO should schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine whether the diagnostic criteria for PTSD are met. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, that are deemed necessary by the examiner, should be accomplished. The examiner should determine whether the veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty and whether it is adequate to support a diagnosis of PTSD. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. If a psychiatric disability other than PTSD is diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. If the examiner is unable to provide an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 3. Thereafter, the issue that remains on appeal must be readjudicated. If a benefit sought is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This clam must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014). Department of Veterans Affairs