Citation Nr: 1725317 Decision Date: 07/03/17 Archive Date: 07/18/17 DOCKET NO. 13-03 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for nummular eczema. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from October 1962 to October 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2014, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. The Board remanded this case in May 2014. The Board is cognizant that a claim for a total rating based on individual unemployability due to a service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of an appeal for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2014, the Veteran indicated that he no longer works due to psychiatric symptoms associated with his now service-connected depression. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received in June 2014. The RO denied entitlement to a TDIU in a September 2014 rating decision. The Veteran has not appealed that decision. A September 2012 VA skin conditions examiner opined that the Veteran's nummular eczema does not affect his ability to work. The Veteran has not argued, and the record does not otherwise reflect, that his service-connected nummular eczema renders him unable to secure or follow a substantially gainful occupation. The Board concludes that a claim for a TDIU has not been raised as part of the increased rating issue on appeal. FINDING OF FACT Throughout the rating period, the Veteran's nummular eczema has manifested over no greater than 8 percent of the Veteran's entire body area or exposed body area and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of at least 6 weeks. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for nummular eczema have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7899-7806 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for a higher initial rating for nummular eczema arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under §§ 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and statement of the case described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required statement of the case in December 2012. The statement of the case cites the applicable statutes and regulations and discusses the reasons and bases for not assigning a higher initial rating. The duty to assist the Veteran has also been satisfied in this case. The Veteran's VA treatment records and identified and available private treatment records have been obtained and associated with the record. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided VA examinations as to his nummular eczema in August 2010 and September 2012. The examiners reviewed the record, considered the Veteran's reported symptomatology, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds the examinations to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not alleged, and the record does not show, that his nummular eczema has increased in severity since the September 2012 VA examination such that another examination is necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time is not a basis for requiring a new examination). Rather, the Veteran contends only that a higher disability rating is warranted. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's appeal for an increased initial rating and no further examination is necessary. There is no indication in the record that any additional evidence, relevant to the appeal adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Compliance with Board Remand As noted in the Introduction, the Board remanded this matter in May 2014. The May 2014 Board remand directed the Agency of Original Jurisdiction (AOJ) to communicate with the Veteran to identify any outstanding, relevant private treatment records, specifically to include records from El Paso Dermatology from February 2012 through the present; obtain any records so identified; and then readjudicate the appeal and issue a supplemental statement of the case, if warranted. Pursuant to the May 2014 Board remand, the AOJ sent the Veteran a letter in July 2014 asking him to identify any outstanding, relevant treatment records. Later in July 2014, the Veteran identified records from El Paso Dermatology and Physicians Healthcare/Wellmed Clinic. Records from both of those sources were then associated with the record, as were further VA treatment records. The AOJ readjudicated the appeal in an August 2014 supplemental statement of the case. Accordingly, the Board finds that VA at least substantially complied with the May 2014 Board remand. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Other Due Process Considerations Also as noted in the Introduction, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in January 2014. At the hearing, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his nummular eczema. In addition, the VLJ solicited information as to the existence of any outstanding evidence. No pertinent evidence that might have been overlooked and that might substantiate the appeal was identified by the Veteran or his representative. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's nummular eczema is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806 (2016). Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, the use of Diagnostic Code 7899-7806 reflects that the Veteran's specific service-connected condition is an unlisted condition and that a diagnostic code was therefore "built-up" using 78, the two digits used for skin disabilities, and 99. Id. The Veteran's nummular eczema is rated using the criteria listed under Diagnostic Code 7806, pertaining to dermatitis or eczema. Under Diagnostic Code 7806, a 10 percent rating is warranted when at least 5 percent, but less than 20 percent of the entire body is affected; or at least 5 percent but less than 20 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body is affected; 20 to 40 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Analysis The Veteran seeks a higher initial rating for nummular eczema. The Veteran's nummular eczema has been rated as 10 percent disabling since May 11, 2010, the date of receipt of his claim for service connection for that disability. The applicable rating period is from May 11, 2010, the effective date for the award of service connection for nummular eczema, through the present. See 38 C.F.R. § 3.400. A private treatment record dated in July 2010 reflects the Veteran's complaints of a recurring rash that appears for approximately three months at a time, two to three times per year. He reported that the rash does not itch, but burns and is painful. He was assessed with rash, with question of herpes zoster, and provided Valtrex, a Medrol dose pack, and triamcinolone cream, a topical corticosteroid. The August 2010 VA examiner noted the Veteran's reported symptoms of itching in the areas of the rash, which involved the buttocks, anal area, groin, and back of the legs. The examiner noted the medications prescribed at the July 2010 private treatment visit. On examination, the Veteran had multiple erythema coin-shaped skin lesions with papules and scales involving both buttocks constituting 1 percent of the entire body, the anal area constituting 1 percent of the entire body, the posterior region of both lower extremities constituting 2 percent of the entire body for each lower extremity, and the groin areas bilaterally constituting 2 percent of the entire body. Thus, total area of the body affected by the condition was 8 percent. There was no scarring or disfigurement, and the condition did not affect any of the Veteran's exposed body area. The September 2012 VA examiner noted the Veteran's report of intermittent, returning rash that sometime itches and is sometimes painful. She provided diagnoses of eczematous dermatitis and herpes simplex. Examination revealed multiple erythematosus irregularly-shaped skin lesion without central papules or pustules. Some lesions were wet with a clear/transparent fluid. The Veteran's lesions were not painful but were itching. The Veteran's perianal, groin, and bilateral legs were clear. The examiner noted the Veteran's need for constant or near constant use of oral Acyclovir for his nonservice-connected herpes symplex, and determined that the Veteran's eczema covers less than 5 percent of the total body area and none of the exposed body area. At the January 2014 Board hearing, the Veteran testified that his rash is painful and itchy to the point where he has difficulty sitting for long periods. The condition is intermittent. When present, it usually lasts for a month or two, but sometimes lasts longer. The Veteran's wife presented similar testimony. The private and VA treatment records show that the Veteran has received multiple prescriptions for his nonservice-connected herpes simplex, to include Valtrex, acyclovir, valacyclovir, and Famvir. The Veteran has also been prescribed clotrimazole, an antifungal medication. He was provided urea lotion for his eczema. The record does not show that the Veteran was prescribed a corticosteroid for his nummular eczema at any time during the rating period except at the July 2010 private visit. The medical treatment records do not include measurements or estimates of the total body area or exposed body area covered by the Veteran's nummular eczema. In view of the above, the Board concludes that the record does not show that the Veteran was entitled to a rating in excess of 10 percent for his service-connected nummular eczema at any time during the rating period. Specifically, the record shows that, throughout the rating period, the Veteran's nummular eczema has manifested over no greater than 8 percent of the Veteran's entire body area or exposed body area. There is no indication that the Veteran's nummular eczema covered 20 percent or greater of his entire body or 20 percent or greater of exposed areas; or that it required intermittent, near-constant, or constant systemic therapy such as corticosteroids for at least 6 weeks during the rating period. In that regard, the Board acknowledges that the Veteran was prescribed triamcinolone cream, a corticosteroid, in July 2010. However, the record does not show that his nummular eczema required such treatment for a total of at least six weeks during the rating period, as no subsequent treatment records reference further prescription of triamcinolone cream or any other topical or systemic corticosteroid or immunosuppressive drug. The most recent treatment notes of record show that the Veteran's treatment providers recommend use of urea lotion for the condition. The Board has considered whether the Veteran is entitled to referral for assignment of a greater level of compensation on an extra-schedular basis. An extra-schedular disability rating is assigned when 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 would render impractical the application of the regular schedular standards. See, e.g., Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In this case, the evidence does not show such an exceptional disability picture that the available schedular ratings for the disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected nummular eczema with the established criteria found in the Schedule for that disability shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's pain and itching, and resulting difficulty sitting for long periods, are not unusual symptoms given the nature of his condition. Thus, the symptoms experienced by the Veteran are taken into account by his current schedular rating. As such, referral for extra-schedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the ratings for the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). There is no indication that this case is an exceptional circumstance in which extra-schedular consideration is required to compensate the Veteran for any additional disability that can be attributed only to the combined effect of multiple conditions insofar as they impact the disability picture of the disability currently on appeal. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (clarifying that, "although Johnson requires the Board, in certain cases, to discuss the collective impact of a claimant's service-connected disabilities, it does not alter the Board's jurisdiction over individual schedular or extra-schedular ratings."). Furthermore, the Veteran has not contended that an extra-schedular rating is warranted either for the nummular eczema itself or based upon the combined effect of multiple conditions. See id.; Doucette v. Shulkin, 28 Vet. App. 366 (2017). Consequently, on this record, referral for extra-schedular consideration is not required under 38 C.F.R. § 3.321(b)(1) for the disabilities at issue on appeal. The Board therefore finds that the criteria for an initial rating in excess of 10 percent for the Veteran's nummular eczema have not been met at any time during the rating period. Accordingly, there is no basis for staged rating of the Veteran's nummular eczema pursuant to Fenderson, 12 Vet. App. at 126-27, and the appeal for a higher initial rating must be denied. As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for nummular eczema is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs