Citation Nr: 1624435 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 10-05 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated January 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2009, the RO granted service connection for facial seborrheic keratosis and contact dermatitis axilla with an evaluation of 0 percent effective October 1, 2008. The Veteran filed a notice of disagreement (NOD) with regard to the RO's disability rating in May 2009. In the RO's December 2009 statement of the case (SOC), the RO separated out the Veteran's issues of service connection for facial seborrheic dermatitis and eczema with residual post-inflammatory hyperpigmentation. The RO increased the Veteran's disability evaluations to 10 percent disabling for facial seborrheic dermatitis and 30 percent disabling for eczema with residual post-inflammatory hyperpigmentation both effective October 1, 2008. However in February 2010, the Veteran perfected an appeal as to the initially assigned rating for his eczema and that claim remains before the Board for its consideration. In February 2015, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development and adjudication. The AOJ continued to deny the claim as evidenced in the August 2015 supplemental statement of the case (SSOC). In May 2016, the Veteran submitted additional treatment records to include records dated through March 2016. Such records were not considered by the AOJ inasmuch as the most recent SSOC was issued in August 2015. However, as those records do not reveal any pertinent information relating to manifestations and/or treatment involving eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities, there is no prejudice to the Veteran in the Board proceeding to decide such claim at this time. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence of record reveals that the Veteran's eczema appears to have required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. CONCLUSION OF LAW The criteria for a rating of 60 percent for eczema are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7806 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 evaluation. 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 Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, 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 (2015). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different DCs is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with an appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service-connected eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities is rated under Diagnostic Code 7806 at 30 percent disabling effective October 1, 2008. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under 38 C.F.R. § 4.118, Diagnostic Code 7806, provides that with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is warranted. With more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, a 60 percent rating is warranted. After considering the evidence of record in a light most favorable to the Veteran, for the reasons stated below, the Board finds that a rating of 60 percent for eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities is warranted. Evidence The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claim. Treatment records from the Naval Medical Center San Diego and Tricare Outpatient Clinic Chula Vista dated from the Veteran's discharge from service through May 2015 document the Veteran's continued complaints of a diffuse rash of his upper body, arms and thighs, which caused intense itching and dark pigmentation. The Veteran was prescribed various steroid creams and antihistamines throughout the years with varying degrees of improvement. A May 2009 treatment note documented the Veteran's receipt of an intramuscular injection of Triamcinolone, to which the Veteran responded well. During an August 2009 VA examination, the Veteran stated that his eczema has been flaring since 2007. In the past the Veteran indicated that he used hydrocortisone cream, but that he was prescribed Triamcinolone topical cream as well as Vanicream and Atarx, an oral medication, to help with the prevalent pruritus. The Veteran reported that he suffered from a recurrent itchy rash which covered his arms, trunk and face on a weekly basis. The Veteran reported that the rash left dark patches all over his body. The Veteran indicated that his treatment provided some improvement of his symptoms, and he reported no other local or systemic symptoms, no malignant neoplasms, and no other symptoms or limitations. Physical examination revealed scattered, slightly erythematous with fine scaly patches on the paranasal and cheeks consistent with seborrheic dermatitis. There was diffuse hyperpigmented patches, with erythema and fine scaly patches on the arms, trunk and upper legs. The examiner noted that the skin lesions on the Veteran's body were consistent with eczema and residual hyperpigmentation. The examiner reported that active eczema involved a total body surface area of less than 5% and exposed area of 0%. The residual post inflammatory hyperpigmentation involved an estimated total body surface area of 20% and exposed area of 0%. The examiner diagnosed eczema with residual post inflammatory hyperpigmentation of the extremities and trunk. In addition, the examiner noted that the Veteran had signification pruritus requiring anti-pruritus medication and topical cream. During a June 2014 VA examination, the examiner noted that the Veteran had mild dermatitis on the anterior aspect of his neck but that he had no active dermatitis or eczema anywhere else. The Veteran reported that he used Triamcinolone or Clobetasol on an "as needed basis," and reported no systemic symptoms. The examiner noted that while the Veteran used topical corticosteroids, he did so for a total of less than 6 weeks within the prior twelve months. A physical examination revealed very mild and minimal eczema on the anterior aspect of the neck with no active weeping, excoriation or lichenification of the skin. The examiner opined that the Veteran's skin condition would not impact his ability to work. During a February 2015 Skin Diseases Disability Benefits Questionnaire (DBQ) the Veteran reported that his condition was previously managed with topical and intramuscular corticosteroids. The examiner noted that the Veteran's current condition was managed with Hydroxyzine, an antihistamine, which the Veteran used constantly or near constantly in the past twelve months, and topical corticosteroids to include Fluocinonide and Triamcinolone which were used constantly or near-constantly for the past twelve months. The examiner noted that the Veteran had not had any treatments or procedures other than systemic or topical medications within the prior 12 months. The examiner indicated that the Veteran's eczema affected 20 to 40 percent of his total body, but that it covered no exposed area. The examiner found no evidence of benign or malignant neoplasms and no evidence that the Veteran's condition would impact his ability to work. During a June 2015 VA examination, the Veteran reported that his eczema occurred on his legs, abdomen, and axillae, and that it was exacerbated when his blood sugar was high. The Veteran reported that he used Fluocininide cream and Vanicream and Hydroxyzine almost daily. The examiner noted that the Veteran's skin conditions did not cause scarring or disfigurement of his head, face or neck, and that he did not have any benign or malignant skin neoplasms nor any systemic manifestations. The examiner reported that the Veteran had taken topical corticosteroids such as Floucinonide cream and medications to help with his persistent itching such as Hydroxizine constantly or near constantly during the prior twelve months. Physical examination revealed that the only area with active eczema was the Veteran's lower legs, which also had significant hyperpigmentation and steroid induced changes. The examiner found that the Veteran's skin conditions would not impact his ability to work. In an addendum opinion the examiner noted that the Veterans eczema was treated with topical steroids and anti-pruritus tablets, but that the Veteran did not require oral steroids. The examiner noted mild findings on the day of the exam with more moderate symptoms reported during a flare up. The Veteran submitted various statements throughout the appeal period expressing his belief that his eczema was more serious than his current rating indicated. In a September 2015 statement, the Veteran alleged that he was prescribed the maximum amount and strength medications to include oral antihistamines and topical steroid creams that he could take in conjunction with the other various medications that he was prescribed for his other medical conditions. The Veteran alleged that he had requested that his doctors prescribe him oral steroids but that as he had a myriad of medical conditions, the risks to his health would be too great. The Veteran indicated that he took oral medications daily and used topical steroid creams constantly. Analysis In applying the relevant criteria to the facts of this case, the Board concludes that a 60 percent rating under Diagnostic Code 7806 is warranted because it appears that the Veteran's prescribed oral medications are potentially systemic, consistent with the criteria Diagnostic Code 7806. The August 2009 VA examiner noted that the Veteran had been prescribed both topical steroid cream as well as oral medication, and the February and June 2015 VA examiners specifically noted that the Veteran was prescribed both topical steroid cream as well as oral medication for the pervasive pruritus which the Veteran had to take constantly or near constantly. Furthermore, the Veteran has competently and credibly described symptoms such as itching and scaling of the skin, and his treatment records reflect that in the past 12 months he has been prescribed medications which appear to include potentially systemic therapy and the clinical records on file reflect that he has had to undergo such therapies constantly or near constantly. Further, while the clinical record mainly reflects that the Veteran's condition has been treated through topical corticosteroid cream and oral medications for pruritus, the Veteran has undergone intramuscular delivery of medications. Therefore, the Board finds that the Veteran has undergone not only topical corticosteroid treatments but also oral and intramuscular medications which appear to be systemic. Therefore, the Board finds that a 60 percent rating is warranted on this basis. Throughout the course of the appeal, the Veteran has asserted that he is entitled to a 60 percent rating under the applicable rating criteria. Through this decision, the Board has granted the desired disability rating. In addition, this is the maximum schedular criteria available for rating eczema. As such, there are no other applicable diagnostic criteria, and there is no higher schedular rating available to the Veteran for this service-connected disability. III. Other Considerations The Board has considered whether staged ratings are appropriate for the Veteran's service-connected eczema; however, the Board finds that his symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. See Fenderson, supra. In reaching its determination in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected skin disability and notes that such lay testimony is competent to describe certain symptoms associated with this disability, to include the aforementioned itching and scaling of the skin. Furthermore, the Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran's eczema. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of his service-connected eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected skin disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. Specifically, the rating criteria contemplates the specific symptoms the Veteran experiences as a result of his eczema, i.e., itching and scaling skin, as well as size of the body and exposed areas affected and the types of treatment. There are no additional symptoms of his eczema that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability, and the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board notes that, pursuant to Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 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, as the appeal does not involve evaluation of multiple service-connected disabilities, further discussion of Johnson is not necessary. For the foregoing reasons, the Board finds that an initial 60 percent rating for eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities is warranted. ORDER An initial disability rating of 60 percent for eczema with residual post-inflammatory hyperpigmentation of the trunk and bilateral upper and lower extremities is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs