Citation Nr: 1634473	
Decision Date: 09/01/16    Archive Date: 09/09/16

DOCKET NO.  09-32 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for a left upper extremity sensory deficit associated with degenerative disc disease and degenerative arthritis of the cervical spine.  

2.  Entitlement to an initial rating in excess of 20 percent for a left lower extremity sciatic nerve involvement associated with degenerative disc disease and degenerative arthritis of the thoracolumbar spine.  

3.  Entitlement to an initial rating in excess of 20 percent for a right lower extremity sciatic nerve involvement associated with degenerative disc disease and degenerative arthritis of the thoracolumbar spine.  

4.  Entitlement to an initial rating in excess of 10 percent for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV (human immunodeficiency virus infection).  



REPRESENTATION

Veteran represented by:  John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1979 to June 1991.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In April 2011, the RO granted service connection for the three issues pertaining to sensory deficits, assigning a 20 percent rating for each, effective in February 2011; the Veteran appealed for higher ratings and an earlier effective date.  [Later, in an August 2015 decision, the Board granted an effective date of June 8, 2007 for the awards of service connection for the three issues; thus, the effective date issue is no longer in appellate status.]  In March 2015, the RO granted service connection for dermatitis, assigning a 10 percent rating, effective in June 2007; the Veteran appealed for a higher rating.  

In an August 2014 decision, the Board denied the Veteran's claims for higher ratings for his sensory deficit disabilities, as well as a claim for service connection for left ear hearing loss.  In the same decision, the Board remanded the Veteran's claim of service connection for dermatitis (which, as earlier noted, was eventually granted in March 2015).  The Veteran appealed that part of the Board's unfavorable decision pertaining to the sensory deficit disabilities to the U.S. Court of Appeals for Veterans Claims (Court).  In March 2015, the parties - the Veteran and the legal representative of the VA (i.e., the Office of the General Counsel) - filed a Joint Motion for Partial Remand to vacate that part of the Board's August 2014 decision denying higher ratings for the sensory deficit disabilities, and to remand the case to the Board.  The Court in a March 2015 Order granted the Joint Motion, and remanded those three matters for readjudication consistent with the terms of the Joint Motion.  

In August 2015, the Board remanded the case to the RO for additional development of the issues pertaining to higher ratings for the sensory deficit disabilities.  The Board also remanded the case to the RO for additional due process development, namely, issuance of a statement of the case, pertaining to the issue of a higher rating for dermatitis (following which the Veteran perfected an appeal as to that issue to the Board with the filing of a substantive appeal in September 2015).  

The issues of entitlement to an initial rating in excess of 20 percent for a left upper extremity sensory deficit associated with degenerative disc disease and degenerative arthritis of the cervical spine, entitlement to an initial rating in excess of 20 percent for a left lower extremity sciatic nerve involvement associated with degenerative disc disease and degenerative arthritis of the thoracolumbar spine, and entitlement to an initial rating in excess of 20 percent for a right lower extremity sciatic nerve involvement associated with degenerative disc disease and degenerative arthritis of the thoracolumbar spine, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

From the effective date of service connection, the Veteran's diagnosed dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, is shown to have been manifested by slightly hyperpigmented papules on the chest, flank, and back that were non-palpable and flush with the skin, and covering between 5 percent and 20 percent of the entire body or exposed areas; treatment of three episodes of the skin disability on the back and legs (with antihistamines) in the year prior to the 2015 VA examination for a duration of at least six weeks but not constantly, was not with systemic therapy or other immunosuppressive drugs; scarring and disfigurement are not shown.  


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002, 2014); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800-7806 (in effect prior to and as of October 23, 2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  Regarding the claim for an initial rating in excess of 10 percent for dermatitis, where, as here, service connection has been granted and an initial disability rating has been assigned, statutory notice under 38 U.S.C.A. § 5103(a) and regulatory notice under 38 C.F.R. § 3.159(b)(1) have been fulfilled.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VA's duty to notify was also satisfied by a September 2015 statement of the case (SOC).  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As to VA's duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the claim.  38 U.S.C.A. § 5103A (a), (b) and (c).  The Veteran was afforded opportunity to testify at a hearing before a Veterans Law Judge, but he declined a personal hearing.  The RO obtained the Veteran's service treatment records, VA treatment records, and records from the Social Security Administration; the Veteran has not identified any other records pertinent to the issue on appeal that remain outstanding.  The Veteran was afforded VA compensation examinations in connection with the claim in September 2013 and September 2015.  The examination reports note the Veteran's medical history and pertinent clinical findings sufficient to evaluate the condition(s) on appeal under governing rating criteria, and are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  There is nothing in the record suggesting any material changes after the September 2015 VA examination so as to warrant a reexamination.  38 C.F.R. § 3.327(a).  Thus, VA's duty to assist is met.  

II.  Pertinent Rating Criteria, Facts, and Analysis

In a March 2015 rating decision, the RO granted service connection for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, and assigned a 10 percent rating, effective June 8, 2007 (the date the Veteran filed a claim of service connection for the disability).  The Veteran seeks an initial rating in excess of 10 percent, claiming in May 2015 that his skin condition covered at least 20 to 40 percent of his body.  

Legal Criteria

Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil 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 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.  Separate "staged" ratings may be assigned for separate periods of time based on facts found.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  

From the effective date of service connection, the Veteran's skin disability has been evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7806, for dermatitis.  His skin condition can also be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800 or scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending upon the predominant disability.  See 38 C.F.R. § 4.118, Diagnostic Code 7806.  In that regard, during the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective October 23, 2008.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2007); see also 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2015).  However, the amended regulations are only applicable to claims received on or after October 23, 2008, or where a claimant requests readjudication under the new criteria.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2015)).  

The Veteran has not specifically requested consideration under the revised criteria of Codes 7800-05.  In any event, even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider both versions.  

Criteria Effective before October 23, 2008

Under Diagnostic Code 7801, for scars, other than head, face, or neck, that are deep or that cause limited motion, a 10 percent rating is assigned for such scars that cover an area or areas exceeding 6 square inches (39 sq. cm.), a 20 percent rating is assigned for such scars that cover an area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is assigned for such scars that cover an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is assigned for such scars that cover an area or areas exceeding 144 square inches (929 square centimeters).  Note (1):  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Note (2):  A deep scar is one associated with underlying soft tissue damage. 

Under Diagnostic Code 7802, scars, other than head, face, or neck, that were superficial or that did not cause limited motion with an area or areas of 144 square inches (929 square centimeters) or greater are assigned a maximum 10 percent rating. 

Under Diagnostic Code 7803, superficial, unstable scars are assigned a maximum 10 percent rating.  Note (1):  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2):  A superficial scar is one not associated with underlying soft tissue damage. 

Under Diagnostic Code 7804, superficial scars that were painful on examination are assigned a maximum 10 percent rating. 

Under Diagnostic Code 7805, other scars are rated based upon limitation of function of the affected part. 

Under Diagnostic Code 7806, dermatitis or eczema is rated under the criteria under Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.  Under Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas; or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating.  Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas; or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating.  Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating.  


Criteria Effective From October 23, 2008

Under Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear are assigned a 10 percent rating for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.), and a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  Note (1):  A deep scar is one associated with underlying soft tissue damage.  Note (2):  If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The mid-axillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 

Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are assigned a maximum 10 percent rating for an area or areas of 144 square inches (929 sq. cm.) or greater.  Note (1):  A superficial scar is one not associated with underlying soft tissue damage.  Note (2):  If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The mid-axillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

Under Diagnostic Code 7804, scar(s) that are unstable or painful are assigned a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful.  Note (1):  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2):  If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3):  Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 

Under Diagnostic Code 7805, for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code.

Under Diagnostic Code 7806, dermatitis or eczema, the criteria are the same as previously noted under the criteria effective before October 23, 2008 (because such criteria were not amended).  

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.).  Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the higher rating claim.  

Factual Background

At the time of an August 2008 VA HIV-related illness examination, the Veteran had three lesions on his arm, which were thought to be lipomas and not manifestations of HIV.  It was also noted that he had a diffuse macular rash over the anterior torso, which had been biopsied in the past and found to be simple inflammation.  The diagnoses included non-specific dermatitis per biopsy, unrelated to HIV.  

On a September 2013 VA skin examination, the diagnosis was dermatitis.  The Veteran reported that since the onset of his symptoms during service in 1985, his skin condition had become worse.  It was noted that the skin condition did not cause scarring or disfigurement of the head, face, or neck, and that there were no systemic manifestations due to the skin condition.  The examiner indicated that the Veteran has not been treated with oral or topical medications in the past 12 months for his skin condition, and that he has not had any debilitating or non-debilitating episodes in the past 12 months relevant to the skin condition.  On physical examination, the Veteran's dermatitis affected 5 percent to less than 20 percent of the total body area and none of the exposed body area (i.e., face, neck, and hands).  The skin condition appeared as slightly hyperpigmented papules on the chest, flank, and back, and they were non-palpable and flush with the skin.  It was noted that his diagnosed skin condition was a "benign neoplasm," for which he was not undergoing any treatment (there were no residual conditions or complications due to the "neoplasm").  The Veteran's skin condition did not impact his ability to work.  

On a September 2015 VA skin examination, the diagnosis was dermatitis (claimed as skin condition with scars on chest associated with HIV positive antibody).  It was noted that the skin condition did not cause scarring or disfigurement of the head, face, or neck; that there were no benign skin neoplasms; and that there were no systemic manifestations due to the skin condition.  The Veteran had been treated in the past 12 months for his skin condition with oral or topical medications, namely, antihistamines (i.e., betadine, for use with rash/hives) for a total duration of six weeks or more but not constant.  He was not treated with any systemic corticosteroids or other immunosuppressive medications, immunosuppressive retinoids, or sympathomimetics.  He did not have any other treatments or procedures for exfoliative dermatitis.  He did not experience any debilitating episodes in the past 12 months relevant to the skin condition, but he did have three non-debilitating episodes of primary cutaneous vasculitis and erythema multiforme, which the Veteran described as episodes of rash/hives on his back and legs.  They responded to treatment with antihistamines.  On physical examination, the Veteran's dermatitis affected 5 percent to less than 20 percent of the total body area and none of the exposed body area (i.e., face, neck, and hands).  The condition appeared as coarse skin with increased pigmentation over areas of the back and chest.  The Veteran's skin condition did not impact his ability to work.  The examiner commented that at the time of examination, the Veteran's condition was active.  

Other relevant medical evidence in the file consists of VA outpatient records.  In various records such as that in August 2007, the Veteran was noted to have had a chronic pruritic skin rash since 1990, which initially developed on his chest and then progressed to his back and upper arms.  The Veteran reported that an outside biopsy had showed chronic inflammation.  On one examination in August 2007, he had diffuse erythematous lesions over the chest and back, ranging in size from 0.1 cm. to 3 cm., with bilateral distribution.  On a later examination that month, there were small, scattered, coin-sized erythematous scars on the trunk that were evidently an immune response to a vaccine trial in the past.  In January 2008, there was a diffuse papular rash about 0.3 cm. in size on the back, without vesicle, in bilateral distribution.  In February 2008, no rashes were observed.  In December 2008, examination of the skin showed erythematous macules/slightly raised dime-sized plaques on the chest (which were not new), which the Veteran indicated were unchanged for over five years, although it was noted he might be getting a few new ones.  In March 2009, no new rash was observed.  Throughout 2009, and in the years that followed, a history of a pruritic rash since 1990 continued to be noted.  On examination in January 2010, no rash was observed.  In July 2010, a skin examination showed healing papular lesions on the chest.  In August 2010 and November 2010, there were no significant skin lesions noted on examination, and he had a normal skin assessment.  Records from 2011 to 2013 noted a history of rash.  In October 2014, the Veteran was seen for a rash that began three weeks earlier, with a few itchy pustules on his knee that resolved and then reappeared on his upper thighs and his chest/back, which reminded him of an inflammatory rash he had many years previously.  Examination of the skin showed small pustules with surrounding erythema at various stages of healing on the right knee and upper thigh, one to two lesions on the left upper thigh, one to four scattered lesions on his back, and two lesions on his chest.  In the assessment, the examiner stated that the rash appeared to be pustular, and that the itchiness and diffuse distribution were a little atypical for folliculitis.  She did not know what to make of the prior history of "inflammatory" rash, and stated that she would refer the Veteran for a dermatological evaluation if it worsened or did not resolve.  On a skin examination in July 2015, there were no pathologic lesions noted.  

Analysis

After careful consideration of the record, the Board finds that the evidence does not support the Veteran's claim for a higher rating for his skin disability.  That is, the signs and symptoms of his skin disability do not approximate the criteria for a compensable rating under Code 7806, or any other applicable evaluation, as will be discussed.  

The outpatient treatment records since the time service connection was established in 2007 show that the Veteran was seen occasionally for a rash/lesions on his torso (chest and back) and later on his knee and upper thighs (in 2014).  These episodes were very infrequent and were documented to occur no more than once or twice a year.  Further, there was no documentation that they required systemic therapy, and there was no description of the approximate percentage of the body that was affected by the skin condition; thus, the outpatient records do not definitively establish that the skin condition was at least 20 percent of the total body.  In short, such records do not support the Veteran's claim for an initial rating in excess of 30 percent under Code 7806.  However, the descriptions of the skin condition certainly do not reflect that it was at least 20 percent of the exposed areas of the body, because the skin condition was not indicated to affect the hands, face, or neck.  Moreover, the outpatient records reveal that the predominant disability regarding the skin condition was the rash, and not any disfigurement of the head, face, or neck or any scars, neither of which were shown.  At one point, the records described macules/plaques on the chest.  If such are deemed to be "scars," they would still not warrant a rating higher than 10 percent under the Codes for evaluating scars because they are not shown to be deep, unstable, painful, or cause limited motion.  

Likewise, the findings on the VA examination reports do not support the Veteran's claim for a higher initial rating.  The examiners have diagnosed the skin condition as (non-specific) dermatitis, which was described by one examiner as slightly hyperpigmented papules on the chest, flank, and back that were non-palpable and flush with the skin.  Another examiner described the condition as coarse skin with increased pigmentation over areas of the back and chest.  Either way, it was noted that the condition did not cause scarring or disfigurement of the head, face, or neck, so that evaluating the condition under diagnostic codes for scars or disfigurement (i.e., both the old and revised Codes 7800-7805) is not appropriate.  Rather, because the condition was identified as dermatitis, versus any number of other possible skin conditions (none of which the examiners indicated), application of Code 7806 is proper, rather than any other diagnostic code for evaluating skin disability.  There is clear documentation that the dermatitis affected 5 percent but less than 20 percent of the total body area and none of the exposed areas, which meets a criterion for a 10 percent disability rating, and no higher rating.  In terms of treatment modalities, the 2013 examiner stated that the Veteran had not had any episodes relevant to the skin condition that required any oral or topical medications, whereas the 2015 examiner indicated that the Veteran had required treatment (namely, antihistamines), for a total duration of six weeks or more but not constantly.  This was evidently necessary for three episodes whereby he developed a rash/hives on his back and legs, and the rash/hives reportedly responded to the antihistamines.  The examiner indicated that such treatment was not considered to be systemic corticosteroids or other immunosuppressive medications, immunosuppressive retinoids, or sympathomimetics.  Thus, while the duration of treatment (i.e., six weeks or more but not constant) would appear to meet the criteria for a 30 percent rating - at least for the year preceding the 2015 examination - the type of treatment (i.e., systemic therapy such as corticosteroids or other immunosuppressive drugs) does not meet the criteria for a 30 percent rating under Code 7806.  

The Board has considered the objective findings of record with regard to the percentage of affected areas, the frequency of skin episodes, the type of medication required, and the duration for which the medication is taken, as reflected on examination reports, in addition to the findings on outpatient records which does not demonstrate a disability picture any more severe than reflected on VA examination.  It is the Board's judgment that the Veteran's skin disability more closely approximates the criteria for a 10 percent rating, rather than a 30 percent rating.  

For the reasons articulated, the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, under any applicable criteria.  38 U.S.C.A. § 5107(b).

Consideration has been given to "staged ratings" for the condition over the period of time since service connection became effective.  Fenderson v. West, 12 Vet. App. 119 (1999).  However, from the effective date of service connection in June 2007, the Veteran's dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, has properly been evaluated as 10 percent disabling.

Extraschedular Rating

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.  Kuppamala v. McDonald, 27 Vet. App. 447 (2015).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Comparing the Veteran's disability level and the symptoms his dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, to the Rating Schedule, the degree of disability manifested by his reports discussed in the decision above is wholly encompassed or covered by the Rating Schedule, which provides for a higher rating for more severe symptoms.  For example, the Veteran's occasional episodes of rash/lesions on his torso, knee and upper thighs, which required antihistamines for six weeks or more (but not constantly) in the year prior to the 2015 VA examination and which covered less than 20 percent of the entire body, are addressed in the criteria within the Rating Schedule, which provides for a higher rating if larger areas of the body were affected and if different types of medication were required.  In other words, the Veteran does not experience any symptoms of this service-connected disability that is not already encompassed by the criteria for the schedular rating assigned.  In light of the foregoing, the Board finds that the assigned schedular rating for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, is adequate and that referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not required.  

The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached.


ORDER

The appeal seeking an initial rating in excess of 10 percent for dermatitis, claimed as a skin condition with scars on the chest, associated with HIV, is denied.   





REMAND

Although the Board sincerely regrets the additional delay, a further remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's other claim so that every possible consideration is afforded.

The Board remanded the case to the RO in August 2015 in part to afford the Veteran a VA examination whereby, among other things, the range of motion of his left upper extremity and both lower extremities would be tested.  As noted in the prior remand, the Court in March 2015 had granted a Joint Motion for Partial Remand of the parties, which agreed that the Board had failed to discuss in its August 2014 decision an examiner's finding in February 2011 of decreased range of motion in the left upper extremity and bilateral lower extremities (the Board had interpreted the examiner's notations of decreased ranges of motion to refer to the cervical and thoracolumbar spine, and not to the extremities).  

The Veteran underwent a VA examination in September 2015, but despite a request for the examiner to objectively measure the range of motion in the Veteran's lower extremities and left upper extremity, the only range of motion studies that were conducted pertained to the cervical and thoracolumbar spine.  

Therefore, the Board has no recourse except to return the case to the RO so that it may arrange for the Veteran to be re-examined in accordance with the directives set forth in the August 2015 remand.  In other words, a remand is necessary to ensure compliance with the Board's directive.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should arrange to have the Veteran scheduled for a VA neurological examination to determine the functional impact of the sensory deficits in his extremities.  The claims file must be reviewed by the examiner.  Specifically, the examiner MUST objectively measure the range of motion in the Veteran's lower extremities and left upper extremity.

The examiner must explain the rationale and reasoning for all opinions and conclusions provided, with reference to supporting clinical data. 

If the examiner cannot provide an opinion without resorting to speculation, he or she must provide complete explanations stating why this is so.  In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

2.  After completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claims for higher ratings for his sensory deficit disabilities.  If the benefits sought remain denied, the AOJ should provide a supplemental statement of the case to the Veteran and his representative, afford them an opportunity to respond, and return the matters to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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 for additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs