Citation Nr: 1630821 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 14-05 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for folliculitis to the head and neck. 2. Entitlement to a separate compensable disability rating for scars to the neck and head. 3. Entitlement to service connection for a dental condition, claimed as an elongated right upper wisdom tooth (Tooth #1), for purposes of compensation and/or treatment purposes. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to June 2004. This matter is on appeal from rating decisions in September 2010 and August 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran testified before the undersigned Veterans Law Judge in July 2014. A transcript of the hearing is of record. This appeal includes documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veterans folliculitis has been characterized by irritation on the scalp and neck; coverage of 20 to 40 percent of the entire body or exposed areas, or the need for corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during the last 12-month period, or any disfigurement, has not been shown. 2. A separate evaluation for scars to the neck and head is improper, as it is not the predominant disability. 3. The Veteran does not have dental condition for which compensation may be granted, nor does he have a dental condition or disability as a result of trauma during his active military service, and does not otherwise meet the requirements for service connection for the limited purpose of receiving VA outpatient dental treatment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for folliculitis to the head and neck have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.118, DCs 7806 & 7813 (2015). 2. The criteria for a separate initial compensable disability rating for scars to the neck and head have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.118, DCs 7800 & 7813 (2015). 3. The criteria for service connection for a dental condition, claimed as an elongated right upper wisdom tooth (Tooth #1), for purposes of compensation and/or treatment purposes, have not been met. 38 U.S.C.A. §§ 1131, 1721, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. See 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. Part 4 (2015). While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2015). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran currently receives a 10 percent disability rating for folliculitis by analogy under 38 C.F.R. § 4.118, DC 7806 (addressing dermatitis). See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). He also receives a separate noncompensable rating for scars to the neck and head under DC 7800. He asserts that he is entitled to ratings in excess of those already assigned. As an initial matter, the Board determines that the application of 38 C.F.R. § 4.20 was incorrect. Specifically, the diagnostic codes listed in 38 C.F.R. § 4.118 include one for dermatophytosis, which is was designed for evaluation of various skin infections such as ringworm and fungal skin infections to the feet, body, beard and, as is most relevant here, the head. See 38 C.F.R. § 4.118, DC 7813. Under this diagnostic code, a veteran's disability will be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. As a consequence, while the Board agrees dermatitis is effectively the predominant disability and that rating the Veteran's folliculitis under DC 7806 was ultimately the correct diagnostic code, DC 7813 does not allow for a separate rating based on scars. Therefore, his noncompensable rating under DC 7800 must be discontinued, and the Board's analysis is limited to whether a rating in excess of 10 percent is warranted under DC 7806. See also Johnson v. McDonald, 27 Vet. App. 497 (2016) (holding that separate ratings are not warranted with a disability rating is assigned under DC 7813, and a separate rating has been assigned under DC 7806). It should be noted that, while the noncompensable rating for scars should be discontinued, the Board may do so in the first instance and without any prejudice to the Veteran, since this action results in no change to his overall disability rating (it is zero). Therefore, none of the typical notice provisions related to a reduction or severance of service connection apply. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (2007); see also 38 C.F.R. § 3.105(e) (2015). In order to warrant a rating in excess of 10 percent under this DC 7806, there must be evidence of dermatitis that: * Covers 20 to 40 percent of the entire body; * Covers 20 to 40 percent of exposed areas (to include the hands, face and neck); or * Requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the last 12-month period. 38 C.F.R. § 4.118, DC 7806 (2015) (30 percent). Based on the evidence of record, a rating in excess of 10 percent is not warranted. Specifically, at a VA examination in August 2011, the Veteran stated that he began to experience ingrown hairs on this neck and scalp since 2003, when he was diagnosed with pseudofolliculitis barbae in 2004, he was given antibiotics, but took them for less than a month. Currently, he stated that he has used a number of over-the-counter topical creams for the last six to twelve months. However, there was no indication that these were corticosteroidal in nature. Moreover, for the last six months, he has used only rubbing alcohol to control symptoms. Upon examination, he exhibited approximately fifteen 1 millimeter keloidal scars on the back of the scalp that were pink on an erythematous base. There was no oozing, crusting or deep skin affectation. Based on these examination results, the Board is able to conclude without doubt that this disorder covers less than 20 to 40 percent of the entire body or of exposed areas. Moreover, while the Veteran has used over-the-counter topical creams, there is no indication that these creams contained corticosteroids, nor has he taken any immunosuppressive drugs in the past year. Cf. Johnson v. McDonald, 27 Vet. App. 497 (2016). Therefore, a rating in excess of 10 percent is not warranted. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his skin disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his skin disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's skin disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. While the Veteran stated at his hearing before the Board in July 2014 that his disorder causes staining to his clothing, this could be remedied by a claim for a special clothing allowance. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also 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). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability due specifically to his service-connected disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Based on evidence of record, the Board determines that an increased rating for the Veteran's folliculitis is not warranted for any period on appeal, and that the assignment of a separate noncompensable rating for scars is impermissible in this situation. As such, the appeal is denied. Service Connection The Veteran is also claiming entitlement to service connection for his upper right wisdom tooth (Tooth #1) which has "super-erupted" or grown to an abnormal length due to the fact that his opposing lower right wisdom tooth was removed in service. At his hearing before the Board in July 2014, he stated that he was told that his upper right wisdom tooth would be removed eventually, but was not. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014 & Supp. 2015). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In the context of dental claims, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2015). Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran's claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161 (2015). See also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2015), such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as due to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. Based on the evidence of record, service connection is not warranted under 38 C.F.R. § 4.150, as there is no indication that the Veteran's claimed disorder involves anything like impairment to the mandible or bone loss in the maxilla or mandible region. He has never asserted that there was actual bone loss or other maxillary impairment, nor has any treatment record indicated such impairment. Thus, service connection may not be established for compensation purposes for missing or damaged teeth. Accordingly, the Board finds that entitlement to VA compensation benefits for a dental disorder is not warranted. Next, the Board also considers whether service connection may be established for the purpose of outpatient dental treatment, based on the criteria set forth in 38 C.F.R. § 3.381. See Mays v. Brown, 5 Vet. App. 302 (1993); see also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications: * Class I: Those having a service-connected compensable dental disability or condition; * Class II: Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place after September 30, 1981, with at least 90 days of service during the Persian Gulf War or 180 days of other active service, and who applied for treatment within 180 days after release from active duty, or prior to September 30, 1981 with at least 180 days of service and who applied for treatment within a year of release from active duty; * Class II(a): Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma; * Class II(b): Homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. 2062; * Class II(c): Those who were prisoners of war, as determined by the concerned military service department; * Class III: Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability; * Class IV: Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability; and * Class V: Those participating in a rehabilitation program under 38 U.S.C. chapter 31, and dental services as are professionally determined necessary for any of the reasons enumerated in § 17.47(g). See 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161 (2012). Based on the evidence of record, service connection for purposes of outpatient dental treatment is not warranted, because the Veteran's condition cannot be categorized under any of the specific classes listed in 38 C.F.R. § 17.161. First, as discussed above, he does not have a dental condition or disability that may be service connected to either a compensable or noncompensable level. Moreover, the claim on appeal is the first time he has submitted a claim for dental benefits, and is many years later than the requisite time limits to submit such a claim. As such, he is not able to be categorized under either Class I or Class II. Next, the Veteran also cannot be classified under Class II(a) since, in addition to not having a service-connected noncompensable condition, the evidence does not indicate that he lost the teeth in question due to dental trauma. Specifically, the Veteran has never asserted that right upper wisdom tooth was elongated due to any sort of trauma, but was instead the result of his right lower wisdom tooth having been removed in service. Moreover, while the Veteran asserts that he was never told to return for dental treatment to remove the upper wisdom tooth (as he had expected), nothing prevented him from seeking out this treatment on his own accord. Moreover, while the Board recognizes the Veteran's essential assertion that his right upper wisdom tooth should have been removed during active duty, the fact that it was never removed does not amount to an injury in service. To the contrary, VA regulations are very specific that disorders such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b) (2015). Finally, the evidence does not indicate that the Veteran is eligible for any other class. Specifically, there is no indication that he was a prisoner of war (POW), precluding entitlement to Class II(b) and Class II(c) treatment. There is also no indication in the record that he has a dental condition that impairs or aggravates a service-connected condition, and his overall service-connected disability rating is not 100 percent. Moreover, he is not a Chapter 31 vocational rehabilitation trainee, nor is he receiving or due to receive VA care and treatment under Chapter 17. In summary, there is no basis to grant service connection for a dental disorder for VA compensation or outpatient treatment purposes as a matter of law. The Board is sympathetic to the Veteran's arguments but, unfortunately, is unable to provide a legal remedy. See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014 & Supp 2015); 38 C.F.R. § 3.159 (2015). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014 & Supp. 2015); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with a VA examination. Upon review of the examination report, the Board observes that the examiner reviewed the Veteran's past medical history, recorded his current complaints and history, conducted an appropriate evaluation and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 10 percent for folliculitis to the head and neck is denied. The assigned noncompensable disability rating for scars to the neck and head is discontinued. Service connection for a dental condition, claimed as an elongated right upper wisdom tooth (Tooth #1), for purposes of compensation and/or treatment purposes, is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs