Citation Nr: 1751517 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-38 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 30 percent for dermatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from November 1960 to February 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. An increased rating of 30 percent, effective August 31, 2012, was granted in January 2016 and June 2017 rating decisions. As a claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded, the claim for a higher initial rating for dermatitis remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The claim was remanded by the Board in August 2015 and April 2016 for additional development and has been returned now for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the appellate period, the Veteran's skin disability has required the use of constant or near-constant topical corticosteroid therapy and has covered at worst 37 percent of his body without disfigurement of the head, face, or neck or other scars. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent rating for dermatitis are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty 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. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in September 2012, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist a veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran has not identified any outstanding medical treatment records. In addition, the Board finds that the VA examination and medical opinion evidence as it pertains to the service-connected skin disability is adequate as it is predicated on a full reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in August 2015 and April 2016, when it was remanded for additional development. In accordance with the remand instructions, outstanding VA treatment records were obtained, VA examinations and opinions were obtained, and a supplemental statement of the case was issued. Since the record reflects substantial compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the 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). Initial Rating: Dermatitis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The Veteran's service-connected dermatitis is evaluated at 30 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806 for dermatitis or eczema, effective August 31, 2012, the date he filed the current claim. Under Diagnostic Code 7806, in order to receive the next highest disability rating, which is a 60 percent rating and the maximum rating available under this Diagnostic Code, the Veteran's dermatitis must cover more than 40 percent of the entire body or exposed areas of the body or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The 60 percent evaluation is the maximum schedular evaluation that may be assigned under Diagnostic Code 7806. The Board finds that the weight of the evidence is against the claim for an increased disability rating for dermatitis as the evidence demonstrates only topical corticosteroid use, rather than systemic therapy, and documents that his dermatitis affects less than 40 percent of his entire body or exposed areas. In a February 2013 VA examination, the Veteran reported using topical cream for less than six weeks and the examiner found that the dermatitis, involving the face, neck, and hands, covered a total body area and exposed area of five percent. In a November 2015 examination, the Veteran reported the use of topical creams and shampoo. The examiner found that the Veteran's skin disability on the face, neck, and hands affected 10 percent of the exposed area and the total body area affected would be 30 percent. In an addendum that same month, the examiner noted the Veteran's reports of flare-ups three to four times per year, each lasting one week, which required more frequent application of cream. However, the examiner found that it was not possible to estimate what percentage of the exposed area or total body area was affected during a flare. Finally, during an April 2017 VA examination, the Veteran reported the constant/near-constant use of topical corticosteroids. The examiner found that the total body area impacted by the Veteran's dermatitis was five percent, the total body area involving eczema was five to 20 percent, and the total exposed area was five percent. Regarding flare-ups as described by the throughout the claim, the examiner noted the Veteran's reports of outbreaks every three to four months, more frequent in the summers when he sweats, each lasting one week. These flare-ups of symptoms on the face/head, upper neck, and outer aspects of the bilateral upper extremities and upper thighs were estimated by the examiner to cover nine percent of each body surface area and approximately 37 percent of the total body surface area. In a July 2017 addendum, the examiner clarified that the estimate in the April 2017 report was based on the Veteran's description of a severe flare-up. The Board has considered all VA treatment records as well as the Veteran's reports that his dermatitis disability is worse during a flare-up than what has been documented upon VA examination. However, the Board finds that the VA examiners, particularly the 2017 examiner, clearly considered the Veteran's reports regarding the severity of his dermatitis during a flare-up. Moreover, there is no medical evidence, including during his frequent visits to the VA dermatologist, which document that the Veteran's service-connected skin disability affects more than 40 percent of his body. In fact, the Veteran is noted to be remarking on how stable and well-controlled his skin disability is with the use of topical creams and shampoo throughout the VA treatment records. Finally, the Board notes that, based on the Veteran's own consistent reports, his flare-ups last a total of about four weeks per year, and do not represent the general status of the disability the overwhelming majority of the time. Therefore, the Board finds that the VA examination and opinion evidence adequately considers the full range of the Veteran's skin disability, including during flare-ups. In addition, as outlined above, the evidence clearly demonstrates that the Veteran has used only topical medications applied directly to the parts of his body where the dermatitis was and has not used systemic therapy to treat his service-connected skin disability at any point throughout the appellate period. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (reversing Johnson v. McDonald, 27 Vet. App. 497 (2016), the Court found that Diagnostic Code 7806 "draws a clear distinction between "systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code", and that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.") The Board notes that Diagnostic Code 7806 does provide that dermatitis or eczema can be rated, in the alternative, under diagnostic codes pertaining to scars. However, the 2017 VA examiner specifically found that there is no disfigurement of the head, face, or neck, or other scarring as a result of the service-connected skin disability. As such, consideration of these criteria is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his skin disability is worse than the rating 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 disabilities 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 disabilities 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 this disability is evaluated. As such, the Board concludes that the Veteran's service-connected skin disability does not more nearly approximate the next highest disability rating and, therefore, the claim for a higher initial disability rating for service-connected dermatitis is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial rating in excess of 30 percent for dermatitis is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs