Citation Nr: 1804280	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  11-14 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for post-inflammatory hyperpigmentation of the skin in the groin area.


REPRESENTATION

The Veteran represented by:  The American Legion


ATTORNEY FOR THE BOARD

M. Galante, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).
The Veteran served on active duty from December 1955 to November 1978.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The Veteran requested a hearing before the Board and was scheduled for a Board videoconference hearing at the RO in September 2016.  The Veteran was notified of the hearing in a July 2016 letter.  In August 2016, the Veteran requested that the hearing take place in Mobile, Alabama.  In the July 2016 letter, the Veteran explained that he was unable to travel to the RO in Montgomery due to health concerns.  The Veteran was notified that VA does not have the capability of conducting hearings outside of the RO.  The Veteran did not attend his scheduled videoconference hearing at the RO and has not requested that the hearing be rescheduled.  Notably, in the October 2016 and July 2017 Informal Hearing Presentations, the Veteran's representative did not request that the hearing be rescheduled, and in an October 2016 statement the Veteran indicated he had no knowledge of requesting a Board hearing.  Given the above, further action relating to the hearing request is not necessary.   

This matter was previously before the Board in December 2016, at which time it was remanded, in relevant part, for an addendum VA medical opinion.  This opinion was received in February 2017.  The RO has complied with the Board's December 2016 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran submitted a Privacy Act request in January 2017 requesting a copy of his service treatment records.  VA responded to this Privacy Act request with the pertinent documents in September 2017.  Accordingly, appellate consideration may proceed. 

In the July 2017 Informal Hearing Presentation, the Veteran's representative acknowledged that service connection had been granted for bilateral hearing loss in February 2017, but argued that "a fair reading of the Notice of Disagreement also included tinnitus.  As tinnitus results in a loss of hearing ability and as it was claimed, the Board should grant service connection."  In the February 2008 rating decision, the RO denied tinnitus, among several other disabilities.  In February 2009, the Veteran filed a Notice of Disagreement, in which he expressly challenged the RO's determinations with respect to the rating assigned for his skin rash, and the denial of service connection for "hypertension, left eye injury, and loss of hearing."  In detailing his hearing loss, the Veteran noted he was on the flight line for 2 years of his military service where he "lost most of [his] hearing" and that he was able "to function without the use of hearing aids by loud volumes or by reading lips."  Nowhere in the Notice of Disagreement did the Veteran mention tinnitus, or any other symptoms, such as ringing in the ears, that could be reasonably interpreted as tinnitus.  The Veteran's Notice of Disagreement did not contain the requisite specificity necessary to initiate an appeal on the issue of service connection for tinnitus.  38 C.F.R. § 20.201 (2017). 

Consequently, because the Veteran did not disagree with the denial of service connection for tinnitus, the February 2008 rating decision became final as to that issue, and the Board does not have jurisdiction over that issue.  38 C.F.R. § 20.1103 (2017).  If the Veteran wishes to pursue a claim of service connection for tinnitus, he is encouraged to file a formal claim on VA form 21-526 (Veteran's Application for Compensation or Pension) accompanied by new and material evidence.  38 C.F.R. §§ 3.1(p), 3.155, 3.156, 3.160 (2017). 


FINDING OF FACT

The Veteran's post-inflammatory hyperpigmentation of the skin in the groin area did not cover 20 percent or more of the entire body or exposed body areas, and did not require systemic therapy at any point during the period on appeal.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for service-connected post-inflammatory hyperpigmentation of the skin in the groin area have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7806 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.

The regulations pertinent to this decision were previously provided to the Veteran in the March 2011 Statement of the Case, as well as the February 2017 Supplemental Statement of the Case.  Since the Veteran has had adequate notice of the pertinent laws governing this appeal, they will not be repeated here, unless deemed appropriate to do so by the Board.

The Veteran contends that he is entitled to a higher rating for his service-connected post-inflammatory hyperpigmentation of the skin in the groin area, which is currently rated at 10 percent disabling under Diagnostic Code 7806.  38 C.F.R. § 4.118 (2017).

For the reasons discussed below, the Veteran's service-connected post-inflammatory hyperpigmentation of the skin in the groin area did not cover more than 20 percent of his total body or exposed body areas, and did not require systemic therapy to control, at any point during the period on appeal.  Therefore, a rating higher than the currently assigned 10 percent is not warranted.

The Veteran was afforded a VA dermatological examination in December 2007.  The Veteran described a skin rash that was primarily located in the groin area.  His only treatment was Kenalog cream 0.1%  applied topically twice a day.  He did not report any significant flare-ups, and had no skin rashes were appreciated throughout the body.  Upon physical examination, the VA examiner noted hyperpigmentation in the groin area, without excoriation.  There were no papules, plaques, nodules, pustules, varicose veins, scales, crusts, signs of erosion, ulcers, fissures, or skin atrophy.  The Veteran was diagnosed with post-inflammatory hyperpigmentation of the skin in the groin area, with less than 7 percent total body area affected, and no exposed body surface area affected.  As these findings do not show that the Veteran's skin disability covered 20 percent or more his entire body or exposed body areas affected, or that the Veteran's disability required systemic therapy for a period of six weeks or more, a higher rating is not warranted.  

For the sake of completeness, the Board notes that while Kenalog cream is a corticosteroid, the Veteran uses it as topical therapy applied only to his groin area.  In Johnson v. Shulkin, 862 F.3d 1351 (2017), the United States Court of Appeals for the Federal Circuit differentiated between systemic therapy and topical therapy.  The Court concluded that systemic therapy meant "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied."  Id. at 1355.  Here, the Veteran's use of the daily corticosteroid cream Kenalog is a topical therapy, not a systemic therapy.

The Veteran was afforded another VA dermatological examination in January 2016.  The Veteran reported that while his skin rash has been dispersed throughout his body in the past, it was localized only to his groin area, where he treated it with a topical antifungal cream called Triamcinolone.  While Triamcinolone is a corticosteroid, the Veteran applied it topically, and it is not a systemic therapy.  Johnson, 862 F.3d at 1355.  Upon physical examination, the VA examiner noted the Veteran's skin rash affected less than 5 percent of the Veteran's total body area, and no exposed body areas.  The VA examiner diagnosed the Veteran with tinea cruris (jock itch) - scaly skin on genital area.  The VA examiner explained that the Veteran's service connected post-inflammatory hyperpigmentation of the skin in the groin area was "subclinical" and that the Veteran's current symptomatology was secondary to unrelated tinea cruris, which is not the same as, a sequel of, or a progression of the Veteran's service-connected condition.  In an April 2016 addendum opinion, the VA examiner specified that this tinea cruris affected only 0.25 percent of the Veteran's total body area, and no exposed body area was affected. 

When this matter came to the Board in December 2016, it was remanded for an addendum medical opinion to address the question of whether any of the corticosteroid creams used by the Veteran over the past several years were required for treatment of his service-connected post-inflammatory hyperpigmentation of the skin in the groin area.  In February 2017, the VA examiner who conducted the January 2016 VA examination provided a negative response.  Consequently, there is no evidentiary support in the VA examiner's January 2016 examination report and associated addendum opinions for a disability rating higher than the currently assessed 10 percent for the Veteran's skin disability.  Again, during the appeals period, the Veteran's skin disability has never affected 20 percent or more of his total body or exposed body areas, and has not required systemic therapy, sufficient to warrant a higher rating under Diagnostic Code 7806.  

In reaching this decision, the Board has granted significant evidentiary weight to the VA examinations of record.  Indeed, the examiners addressed the Veteran's pertinent medical history, conducted thorough clinical evaluations, and competently made pertinent medical findings addressing all relevant rating criteria regarding the nature and severity of the Veteran's skin condition.  

The Board also acknowledges private treatment notes from July 2006 describing the Veteran's long history of pruritus scroti, treated daily with Vytone cream.  See 38 C.F.R. § 3.400(o) (2017) (Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed).  Vytone is a corticosteroid, but this cream was applied topically and cannot be considered a systemic therapy for rating purposes.  Johnson, 862 F.3d at 1355.  Finally, in the July 2017 Informal Hearing Presentation, the Veteran's representative requested that the Board consider and address flare-ups of the Veteran's skin disability in its determination.  Notably, the representative did not point to anywhere in the electronic claims file to support the presence of skin disability flare-ups.  After a review of the record, there is no indication that the Veteran has ever experienced flare-ups of his skin disability within the appeals period.  At both VA examinations of record, the Veteran reported his condition was controlled with topical treatment, and during the December 2007 VA examination, the Veteran explicitly indicated he did not experience any significant flare-ups.  Accordingly, this argument is without merit.

In conclusion, the weight of the most probative evidence is against the claim of entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected post-inflammatory hyperpigmentation of the skin in the groin area.  The benefit-of-the-doubt rule does not apply.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  The claim for an evaluation in excess of 10 percent for service-connected post-inflammatory hyperpigmentation of the skin in the groin area is denied.




ORDER

Entitlement to a disability rating in excess of 10 percent for service-connected post-inflammatory hyperpigmentation of the skin in the groin area is denied.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs