Citation Nr: 1519096	
Decision Date: 05/05/15    Archive Date: 05/19/15

DOCKET NO.  09-37 354A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable rating for eczema.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1991 to March 1995.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).

In February 2012, the RO increased the disability ratings for migraines and a right shoulder disability to 30 percent.  On June 27, 2011, the Veteran submitted a written statement that such increase would satisfy these appeals in full.  As the Veteran has expressed complete satisfaction with the 30 percent grants, the issues are no longer on appeal.  

In a statement dated December 7, 2012, prior to the promulgation of a decision, the Veteran requested that the appeal involving the issue of entitlement to an increased rating for residuals of a skull fracture be withdrawn.  As such, this issue is no longer on appeal.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2014).


FINDING OF FACT

At no time during the appeal period has the Veteran's service-connected eczema manifested by symptoms more closely approximating a deep and nonlinear scar involving an area of at least 6 square inches; a superficial and nonlinear scar involving an area of 144 square inches or greater; one or two scars that are painful or unstable; or other functional impairment; it is also not shown to have involved at least 5 percent of the entire body (or of exposed areas), or to have required intermittent systemic therapy.

CONCLUSION OF LAW

The criteria for a compensable rating for eczema have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.31, 4.118, Diagnostic Code 7806 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).  The appeal arises from a disagreement with the initially assigned disability rating after service connection was granted.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).  The Veteran's service treatment and personnel records have been obtained.  Post-service VA treatment records have also been obtained.

The Veteran was provided VA medical examinations in July 2008, November 2009, and February 2014.  The Veteran contends that the November 2009 examination was inadequate because the examiner did not have him undress or take measurements of the entire body to determine coverage percentages of his skin condition.  He further asserts that the examiner only talked to him and asked a few questions.  See Statement (Nov. 3, 2010).  Essentially, the Veteran asserts that the examiner failed to consider how his skin disability affects the non-exposed parts of his body.

The Board notes that the November 2009 skin examination was performed in conjunction with a full Gulf war examination.  The examination report shows that the examiner inspected the Veteran's entire body, including his breast skin and genitals, which were both normal.  The Board finds no reason to question the examiner's findings, especially in light of the fact that the Veteran did not assert and the evidence does not show that the service-connected skin disability affected unexposed parts of his body around the time of the examination.

The Board finds that the July 2008, November 2009, and February 2014 examinations, along with the expert medical opinions, in their totality, are sufficient evidence for deciding the claim.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the service-connected skin disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  Thus, VA's duty to assist has been met.

II.  Increased Rating Claim
As a threshold matter, the Board notes that in September 2008, the RO granted service connection for tinea corporis and assigned a noncompensable rating under Diagnostic Code 7806 based on evidence of a rash on the elbows and right knee.  In September 2010, the RO granted service connection for eczema with exostosis and assigned a noncompensable rating under Diagnostic Code 7806 based on evidence of a rash on the elbows and right knee and exostosis on the tip of the great toes.  In February 2012, the RO combined the noncompensable rating for tinea corporis with the noncompensable rating for eczema, leaving the Veteran with a single noncompensable rating for eczema.

The Board finds that the RO's February 2012 decision to consolidate the Veteran's service-connected skin ratings into a single rating was appropriate and best reflects the Veteran's disability.  The selection of diagnostic codes is not "protected ratings" and may be appropriately revised if the action does not result in the reduction of compensation payments.  See 38 C.F.R. §§ 3.951, 3.957 (2014); Butts v. Brown, 5 Vet. App. 532 (1993).  VAOPGCPREC 71-91 (November. 7, 1991).  Here, the Veteran's skin disabilities are manifested by the same symptoms in the same anatomical locations.  Additionally, the RO's decision did not result in a reduction in compensation payments.  Accordingly, the Board finds no error in the RO's decision to consolidate the Veteran's ratings.

B.  Applicable Laws

The Veteran seeks an initial compensable rating for a skin disability characterized as eczema, which is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7806.

Under Diagnostic Code 7806, eczema may be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.  See 38 C.F.R. § 4.118 (2014).  As discussed below, the evidence does not show that the Veteran's skin disorder affects the head, face, or neck.  Accordingly, Diagnostic Code 7800 is not applicable.

The Board notes that Codes 7801-7805 (for scars) were revised effective October 23, 2008.  The regulatory changes pertaining to the rating of scars apply only to applications received by VA on or after October 23, 2008, or if the veteran requests review under the clarified criteria.  See 73 Fed. Reg. 54708 (Sept. 23, 2008).   The revisions made no substantive changes to Diagnostic Code 7806.  In any event, as the Veteran's application for an increased rating was received after this date, the revised criteria for Diagnostic Codes 7801-7805 are applicable.

Under Diagnostic Code 7801, a 10 percent rating is warranted for deep, nonlinear scars not on the head, face, or neck that cover at least 6 square inches.

Under Diagnostic Code 7802, a 10 percent rating is warranted for superficial, nonlinear scars not on the head, face, or neck, that cover at least 144 square inches.

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two painful or unstable scars.  A note following the rating criteria indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Under Diagnostic Code 7805, scars can be rated on the basis of limitation of function of the affected area. 

Under Diagnostic Code 7806, the current noncompensable rating is warranted when eczema effects less than 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy is required during the past 12-month period.  The next higher rating, a 10 percent, is warranted when eczema effects 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, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period.  See 38 C.F.R. § 4.118 (2014).

C.  Analysis

The Veteran and his wife report that his skin disability manifests as a rash on different parts of his body.  See, e.g., Statement (July 8, 2008).

At a July 2008 VA examination, the Veteran reported that his rash is worst between April and August.  At the time of the examination, he was treating the rash with hydrogen peroxide.  On physical examination, the examiner reported that the trunk, buttocks, and groin were clear of any rash.  The examiner noted a minimally erythematous, scaly plaque on the dorsum of the right foot that involved less than 0.5% of the total body surface area and none of the exposed areas.

At a November 2009 VA examination, the examiner noted 2 x 2 cm patches of scaliness on both elbows and a 2.5 x 2.5 cm patch on the right knee and exostosis on the tip of the great toes.  The examiner noted that the on the Veteran's breasts and genitals was normal.  The examiner diagnosed eczema with exostosis.  The examiner reported that eczema affected less than 5% of the total body surface area and none of the exposed areas.  The examiner noted that the Veteran was treating the rash with a topical corticosteroid.

VA treatment records show that the Veteran reported recurrent skin problems on his feet and elbows on April 17, 2012, and December 4, 2012.  On physical examination, the Veteran had some redness on his heels, but his skin was otherwise unremarkable.
 
At a February 2014 VA examination, the Veteran reported recurrent rash on the forearms and left wrist since 1994 that manifests between March and October.  The examiner noted that that the rash was treated with topical corticosteroids for less than 6 weeks in the past 12 months.  On physical examination, the skin was normal.
 
In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that throughout the appeal period the symptoms associated with the Veteran's skin disability have not warranted a compensable rating.  

In particular, the record does not show, and the Veteran does not assert, that his skin disability more closely approximated a deep and nonlinear scar involving an area of at least 6 square inches; a superficial and nonlinear scar involving an area of 144 square inches or greater; one or two scars that are painful or unstable; or other functional impairment.  Accordingly, the next higher rating is not warranted under Diagnostic Codes 7801, 7802, 7804, or 7805.

The Veteran is competent to report a rash, which is within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet.App. 465, 469-71 (1994).  The competent medical evidence of pertaining to the percent of the total body surface area that the rash affects consists of the VA examinations and VA treatment records.  These records consistently show that the Veteran's rash never covered 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 require intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs.

To the extent that the Veteran contends that the rash manifests in between February and October, the Board notes that VA examination and medical treatment records from February, April, and July did not reveal symptoms warranting a higher rating.

The Veteran's service-connected eczema has resulted in an intermittent rash on the trunk, wrist, forearms, knees, elbows, and toes.  The rating criteria reasonably describe the Veteran's disability level and these symptoms.  The Veteran's disability picture is contemplated by the rating schedule; the assigned schedular rating for the service-connected disability is adequate; and referral for extraschedular consideration is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1)(2014).

In addition, the Veteran has not raised, and the evidence of record does not otherwise suggest that the Veteran's service-connected skin condition precludes obtaining and maintaining substantially gainful employment.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As such, further consideration of Rice is not required.



ORDER

An initial compensable rating for eczema is denied.



____________________________________________
M. N. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs