Citation Nr: 1638073 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 12-20 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for alopecia areata, currently rated noncompensably (zero percent) disabling. 2. Entitlement to an increased rating for right epicondylitis with postoperative scar, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, continued a noncompensable (zero percent) rating for service-connected alopecia areata and a 10 percent rating for service-connected right epicondylitis with postoperative scar. Jurisdiction over this case was subsequently transferred to the RO in Atlanta, Georgia, and that office forwarded the appeal to the Board. The Veteran requested a video conference hearing before the Board, and such a proceeding was scheduled in March 2015. However, he failed to appear for the hearing, and did not provide good cause for his failure to report. Therefore, his request for a hearing has been considered withdrawn. 38 C.F.R. § 20.704(d) (2015). The issue of entitlement to an increased rating for right epicondylitis with postoperative scar is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's alopecia areata most nearly approximates loss of hair limited to scalp and face, and does not more nearly approximate loss of all body hair. CONCLUSION OF LAW The criteria for a compensable rating for alopecia areata have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.118, Diagnostic Code (DC) 7831 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In particular, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). The notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). However, for increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the Veteran was adequately informed of the information and evidence necessary to substantiate the claim decided herein, as well as of VA's duty to assist and of his responsibilities in the adjudication of his claim, via a letter dated in January 2007. The Board finds that this letter complies with the requirements of 38 U.S.C.A. § 5103(a) and Vazquez-Flores, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Next, the VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)-(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(1)-(4). All available evidence pertaining to the Veteran's claim decided herein was obtained by the VA and associated with the claims file. The relevant evidence obtained includes the Veteran's service treatment records, private treatment records, VA treatment records, VA examination reports, and lay statements. The Board is not aware of, and neither the Veteran nor his representative has suggested the existence of, any additional pertinent evidence not yet received. In addition, the Veteran was provided a VA examination in February 2007 in connection with his increased rating claim decided herein, the report of which is of record. The Board finds that the examination report, along with the other lay and medical evidence of record, contain sufficient evidence by which to evaluate the Veteran's service-connected alopecia areata in the context of the pertinent regulations. Accordingly, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with the rating matter decided herein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that VA has complied, to the extent required, with the VCAA duty-to-assist requirements. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)-(d). II. Increased Disability Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. Here, the Veteran's alopecia areata is rated as noncompensably disabling under 38 C.F.R. § 4.118, DC 7831, which pertains specifically to alopecia areata. Under DC 7831, a zero percent rating is warranted for loss of hair limited to scalp and face, and a maximum 10 percent rating is warranted for loss of all body hair. 38 C.F.R. § 4.118, DC 7831. Turning to the relevant evidence of record, in February 2007, the Veteran was afforded a VA examination for evaluation of his alopecia areata in connection with this increased rating claim. At that examination, the Veteran reported having tender spots on his face, specifically the beard area where hair does not grow, and that he carefully shaved around these areas to avoid tenderness. On physical examination, the examiner found that the Veteran's hair loss was limited to the scalp and face. The examiner also noted multiple coalescing round patches of hair loss with exclamation point hairs at the periphery of the beard area. In the end, the examiner confirmed the Veteran's diagnosis of alopecia areata of the beard area. Moreover, the examiner found that the Veteran's alopecia areata resulted in no functional impairment and had no effect on employment. Based on the foregoing, the Board finds that a compensable disability rating is not warranted for alopecia areata. The above evidence reflects that the Veteran's alopecia areata has resulted in loss of hair to the face. There is no evidence of record that the Veteran has experienced any hair loss anywhere else on his body due to alopecia areata. Notably, the Veteran does not assert that he has had any hair loss anywhere other than his face. Accordingly, the Board finds that the weight of the evidence demonstrates that the Veteran's alopecia areata has not more nearly approximated loss of all body hair, as is required for a higher 10 percent rating. Therefore, the claim for a compensable rating for alopecia areata must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine enunciated in 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable here. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). The Board notes that it has a duty to acknowledge and consider all DCs that are potentially applicable. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, whereas here, the disability for which service connection is in effect is specifically listed in a DC, the disability should be rated under that DC and not under another DC by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy"). As DC 7831 is specifically for rating alopecia areata, further consideration of the DCs in 38 C.F.R. § 4.118 are not warranted. III. Additional Considerations In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2015). Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold question is whether the schedular rating criteria adequately contemplate the claimant's disability picture. See Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. Id. at 115-16. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Id. at 116. Here, besides hair loss of the face, particularly the beard area, the Veteran has reported that his alopecia areata symptoms include tender spots on the face. See February 2007 VA examination. In addition, the Veteran has reported that he experiences painful itching caused by his alopecia areata. See July 2007 Notice of Disagreement. Although the applicable scheduler criteria contemplate symptoms such as hair loss, it does not specifically contemplate tenderness and painful itching. Consequently, the Board will consider whether the alopecia areata disability picture exhibits other related factors such as those provided by the regulations as "governing norms." In this case, the Veteran and his representative have not argued, and the evidence of record does not reflect, that the alopecia areata results in marked interference with employment. There is also no evidence that the alopecia areata has resulted in frequent hospitalization or that the symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for alopecia areata is not warranted. 38 C.F.R. § 3.321(b)(1). The Board notes that according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran and his representative have not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). Furthermore, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). Here, the Veteran has not asserted, nor does the evidence of record suggest, that his alopecia areata has rendered him unemployable. On the contrary, VA treatment notes indicate that he has been working full-time as a middle school principal, and previously as a middle school teacher. In addition, the February 2007 VA examiner found that the Veteran's alopecia areata did not impact his ability to work. Therefore, the Board finds that a claim for a TDIU has not been reasonably raised. ORDER Entitlement to an increased rating for alopecia areata, currently rated noncompensably disabling, is denied. REMAND VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart, 21 Vet. App. at 508. Here, the evidence of record demonstrates that the Veteran's service-connected right epicondylitis with postoperative scar has worsened since his most recent VA examination (concerning epicondylitis) in September 2006. In particular, a January 2013 VA treatment note shows that the Veteran complained of worsening right elbow pain in connection with his service-connected right epicondylitis. In addition, in July 2007, the Veteran asserted that he also experiences a painful scar relating to his service-connected right epicondylitis. The Board recognizes that the Veteran could be entitled to a separate rating for a painful scar pursuant to 48 C.F.R. § 4.118, DC 7804, if certain criteria are met. Although the September 2006 VA examiner noted the presence of a right elbow scar in connection with the right epicondylitis, he did not provide any comment as to whether such scar was painful. Based on the foregoing, the Board finds that it has insufficient information to evaluate the Veteran's claim for an increased rating for right epicondylitis with postoperative scar. A new VA examination in accordance with the current VA examination worksheet or disability benefits questionnaire is therefore warranted. Finally, as the Veteran appears to have ongoing VA and/or private medical treatment for his right epicondylitis, any relevant outstanding treatment records should be obtained as well on remand. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to obtain any relevant outstanding private and VA treatment records. 2. Then, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected right epicondylitis with postoperative scar. All indicated tests and studies shall be conducted. The claims file must be sent to the examiner for review. The examiner should conduct an examination in accordance with the current VA disability benefits questionnaire. 3. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental SOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs