Citation Nr: 1804716 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-11 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a compensable rating for bilateral axillary and inguinal rashes prior to August 27, 2010, and in excess of 10 percent thereafter. 2. Entitlement to an earlier effective date (EED) prior to November 14, 2005 for entitlement to service connection for bilateral axillary and inguinal rashes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 until January 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in San Diego, California in October 2017. A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. Prior to August 27, 2010 the Veteran's bilateral axillary and inguinal rashes affected less than 5 percent of his total body area, less than 1 percent of his exposed area, and is treated with no more than topical therapy. 2. From August 27, 2010 the Veteran's bilateral axillary and inguinal rashes has affected at least 5 percent but less than 20 percent of his total body area, less than 1 percent of his exposed area, and is treated with no more than topical therapy. 3. A March 2002 Board decision denying service connection for bilateral axillary and inguinal rashes is final; the Veteran's claim to reopen service connection for bilateral axillary and inguinal rashes was received by VA on November 14, 2005. 4. The competent credible evidence of record is against a finding that the Veteran is entitled to an effective date earlier than November 14, 2005, for entitlement to service connection for rating for bilateral axillary and inguinal rashes. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the Veteran's bilateral axillary and inguinal rashes, prior to August 27, 2010, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.118, Diagnostic Code 7806 (2017). 2. The criteria for a disability rating in excess of 10 percent for the Veteran's bilateral axillary and inguinal rashes, from August 27, 2010, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.118, Diagnostic Code 7806 (2017). 3. The criteria for an effective date earlier than November 14, 2005for entitlement to service connection for bilateral axillary and inguinal rashes have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to a compensable rating for bilateral axillary and inguinal rashes prior to August 27, 2010, and in excess of 10 percent thereafter. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim 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 (2007). Rating Dermatitis/Eczema (DC 7806) The Veteran's service-connected for bilateral axillary and inguinal rashes has been rated under Diagnostic Code 7806 for dermatitis or eczema. 38 C.F.R. § 4.118 (2017). The following ratings are available under Diagnostic Code 7806: A 60 percent rating is assigned for dermatitis covering more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. A 30 percent rating is assigned for dermatitis covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12 month period. A 10 percent rating is assigned for dermatitis covering at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A zero percent rating is assigned for dermatitis covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Analysis The Veteran was originally awarded noncompensable rating for bilateral axillary and inguinal rashes in a December 2009 rating decision. The Veteran submitted his disagreement with the December 2009 rating decision and in a May 2011 Statement of the Case (SOC) was subsequently granted a 10 percent disability rating for bilateral axillary and inguinal rashes, effective August 27, 2010. A September 2009 examination report noted the Veteran with mildly hyperpigmented skin with slightly darker than normal skin color in regard to the Veteran's bilateral axillae. In regard to the Veteran's inguinal, the Veteran was found to have mildly hyperpigmented rashes with no redness. The examination report further described the Veteran's skin disability as involving less than 2% of the Veteran's total body and 0% of exposed skin. A November 2009 VA medical examination report noted the Veteran's use of topical corticosteroids for the Veteran's service-connected skin disability. An examination was obtained on August 27, 2010. The examination report provides a diagnosis of dermatitis and bilateral axillary crural/sacral. The examination report further noted the Veteran's use of topical therapy of 0.5% within the preceding 12 months. Additionally, the Veteran's skin disability was noted as involving 0% of exposed areas and at least 5% of the Veteran's total body. An examination was obtained in April 2012. The examination report provides a diagnosis of dermatitis and bilateral axillae. The examination report further noted the Veteran's use of topical therapy of fluocinonide of 0.5% within the preceding 12 months. Additionally, the Veteran's skin disability was noted as involving at least 5% but less than 20% of the Veteran's total body. Based on the Veteran's total body area affected being less than 5 percent and him being treated with no more than topical therapy prior to August 27, 2010, a zero percent rating is warranted for his bilateral axillary and inguinal rashes under DC 7806. Additionally, based on the Veteran's total body area affected being less than 20 percent and him being treated with no more than topical therapy within the preceding 12 months, a rating in excess of 10 percent rating, from August 27, 2010 is not warranted for his bilateral axillary and inguinal rashes under DC 7806. Total rating for compensation purposes based on individual unemployability (TDIU) Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record does not indicate that the Veteran has been unable to maintain substantial gainful employment due to his bilateral axillary and inguinal rashes disability. Thus, the issue of entitlement to TDIU has not been reasonably raised by the record. Entitlement to an earlier effective date (EED) prior to November 14, 2005 for entitlement to service connection for bilateral axillary and inguinal rashes. Legal Criteria The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2017). A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2017). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p) (2017). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155 (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). Analysis The Veteran is seeking an effective date prior to November 14, 2005 for the award of service connection for bilateral axillary and inguinal rashes. He contends the effective date should be at least July 14, 1994, the date he filed his original claim for entitlement to service connection for bilateral axillary and inguinal rashes. Historically, the appellant's original claim for entitlement to service connection for bilateral axillary and inguinal rashes was denied in March 1995. The Veteran submitted a notice of disagreement. A statement of the case (SOC) was issued in February 1996 by the RO, which continued the denial for entitlement to service connection for bilateral axillary and inguinal rashes. In March 1996, the Veteran submitted his substantive appeal in regard to the March 1995 RO decision. In a March 2002 decision, the Board denied the Veteran claim for entitlement to service connection for bilateral axillary and inguinal rashes. The Veteran did not appeal the Board's March 2002 decision and it became final. In November 2005, the Veteran filed a claim to reopen his claim for entitlement to service connection for bilateral axillary and inguinal rashes. In an April 2006 decision, the RO denied the Veteran's claim because the evidence submitted was not new and material. In December 2009, the RO reopened and subsequently granted the Veteran's service connection claim for bilateral axillary and inguinal rashes effective November 14, 2005, the date of receipt of his reopened claim. Here, the claims folder reflects that the March 2002 Board decision was not appealed. A decision of the Board is final on the date stamped on the face of the decision. 38 CF.R. § 20.1100 (a). Thus, the Veteran's original July 14, 1994 service connection claim for bilateral axillary and inguinal rashes was terminated with the March 2002 Board decision. As the first formal or informal correspondence to reopen a claim for service connection for bilateral axillary and inguinal rashes was received on November 14, 2005, an earlier effective date is not warranted. ORDER Entitlement to a compensable rating for bilateral axillary and inguinal rashes prior to August 27, 2010, and in excess of 10 percent thereafter is denied. Entitlement to an earlier effective date prior to November 14, 2005 for entitlement to service connection for bilateral axillary and inguinal rashes is denied. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs