Citation Nr: 1803619 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-10 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to February 11, 2011, for the assignment of a 60 percent evaluation for contact dermatitis with keloidal scarring of the scalp. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran honorably served in the United States Army from March 1991 through October 1992, and then again in March 1993 through February 1996. On January 26, 2007, the Veteran filed an informal service connection claim for contact dermatitis with keloidal scarring of the scalp. Service-connection was granted and the Veteran's disability rated at 30 percent. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran timely filed a Notice of Disagreement in June 2013, arguing that the effective date was erroneous. FINDING OF FACT 1. The record contains medical treatment notes from October 5, 2010, demonstrating examination and treatment for a skin condition of the scalp. 2. Since October 5, 2010, the Veteran has required constant, or near constant, systemic therapy during the preceding 12-month period. CONCLUSION OF LAW The criteria for establishing entitlement to an effective date of October 5, 2010, for the assignment of 60 percent evaluation of contact dermatitis with keloidal scarring, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 4.118 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Earlier Effective Date The Veteran contends that he is entitled to an earlier effective date prior to February 11, 2011, for the assignment of the 60 percent evaluation for his service-connected contact dermatitis with keloidal scarring. For historical purposes, the Veteran was granted service-connection for contact dermatitis in an October 2007 rating decision, with a 30 percent assigned evaluation. The 30 percent evaluation was effective January 26, 2007. In September 2008, a Disability Review Officer, increased the evaluation to 50 percent, which also was effective January 26, 2007. The Veteran's evaluation was subsequently increased to 60 percent in a rating decision dated May 2013, which issued an effective date of February 11, 2011. The Veteran has argued that the 60 percent should be effectuated on the date of his informal claim for increase. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Also, with regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination, or date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim, provided such reports relate to examination or treatment of a disability for which service connection has previously been established; or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. 3.155(a). In this regard, a "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] Veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." Massie, 25 Vet. App. at 133. The record reflects that on January 18 2011, VA received hospital records dated October 5, 2010, from Hampton Veterans Affairs Medical Center (VAMC). The Veteran presented with a 19 year history of dissecting folliculitis of the scalp. He had been taking Doxycycline as prescribed and using a benzoyl peroxide wash but without improvement. The Veteran said that the lesions on his scalp "bust" under his cap, required at work, and on his pillow at night. He also complained that the lesions on his scalp reportedly caused headaches and that sometimes they start upon wakening and are worsened with bumping his head while crawling into tight areas at work. Physical exam showed skin colored round and linear plaques with open pores with and multiple hairs coming from each pore on the scalp. There were no draining pustules at that time. The dermatologist injected Kenalog (a steroid) into the lesions. During a follow-up visit, the Veteran noted initial improvement after the last visit but with recurring lesions, particularly on the right side of the scalp. Exam showed skin colored round and linear plaques with open pores and multiple hairs coming from each pore with some serosanguinous crust overlying the right parietal scalp lesions. A stronger dose of Kenalog was injected. The Veteran was advised to continue with the Benzoyl Peroxide scrub and return as needed for additional injections. Since these records contain outpatient report and examination that the Veteran's already service-connected dermatitis was worsening, in a claim for increase rating, they may serve as the receipt date for a claim. Therefore, the date of the examination report, i.e., October 5, 2010, would be the earliest date for a possible grant of the claim sought by the Veteran. See 38 C.F.R. § 3.157(b)(1). The proper effective date is either the date of claim, or, the date entitlement arose, whichever is later. With that having been said, the Board finds that the date of entitlement is also October 5, 2010. In February 2011, VA received a statement from the Veteran seeking service connection for folliculitis cheloidalis, which is the contact dermatitis of the scalp. The Veteran subsequently underwent VA examination in April 2011. On physical exam, there were multiple cystic, nodular, hyperpigmented, disfiguring, inflexible keloids on the scalp. The examiner indicated these keloids involved an area of 4 x 6 centimeters (cm) total. There was no instability, adherence, edema, exfoliation, crusting, tissue loss, induration, hypopigmentation, limitation of motion, or ulceration associated with these keloids. The examiner estimated this condition involved approximately 36 percent of the Veteran's exposed body surface area, and approximately three percent of the total body surface area. Then in May 2013, the RO issued a rating decision increasing the Veteran's service-connected disability evaluation based on the October 2010 VAMC and April 2011 VA examination, which supported that the Veteran's symptoms were closely approximate to the criteria for a 60 percent evaluation, based on all evidence of record. A 60 percent evaluation is warranted when there is constant or near constant systemic therapy such as corticosteroids, or other immunosuppressive drugs required during the past 12 months or more than 40 percent of exposed areas are affected. See Diagnostic Code 7806. A subsequent Statement of the Case notes that it is not factually ascertainable that the increase in disability occurred in the October 2010 VAMC records. The Veteran has argued, through counsel, that October 5, 2010, should stand as the effective date not because an increase was factually ascertainable, but because, as indicated above, the hospital report serves as the receipt for the informal claim. See 38 C.F.R. §3.157(b)(1). The Board agrees with this assessment. In addition, the May 2013 rating decision considers all evidence of record, and notes the symptoms more closely approximated a 60 percent evaluation. However, the review of worsening began with the October 2010 VAMC record. Therefore, both the date entitlement arose and receipt of claim is October 5, 2010. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an effective date of October 5, 2010, for the assignment of a 60 percent disability evaluation. See 38 U.S.C. § 5107(b). Again, a 60 percent evaluation is warranted under Diagnostic Code 7806 when 40 percent of the body or exposed areas are affected, or when the dermatitis requires constant, or near constant, systemic therapy such as corticosteroids or other immunosuppressive drugs within the last 12 months. 38 C.F.R. § 4.118. The claim of entitlement to an earlier effective date for the assignment of a 60 percent evaluation for coronary artery disease is granted. ORDER The claim of entitlement to an effective date of October 5, 2010, for the grant of a 60 percent evaluation for contact dermatitis with keloidal scarring of the scalp is granted. ____________________________________________ B. Mullins Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs