Citation Nr: 1805002 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for eczema of the hands, legs, and feet, prior to June 3, 2016, and in excess of 60 percent thereafter. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1965 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The Veteran filed his notice of disagreement in October 2012. He timely filed his substantive appeal in April 2014. The Veteran initially requested a hearing but withdrew the hearing request in an October 2015 Correspondence. This case was previously before the Board in May 2016, where the issue on appeal was remanded for further evidentiary development. FINDINGS OF FACTS 1. Prior to June 3, 2016, the Veteran's eczema covered at least 5 percent but less than 20 percent of the entire body and at least 5 percent but less than 20 percent for exposed areas affected. 2. From June 3, 2016, the Veteran's eczema covered 20 to 40 percent of his body and 20 to 40 percent of the exposed areas affected, with near-constant systemic therapy required during the past 12-month period. CONCLUSIONS OF LAW 1. Prior to June 3, 2016, the criteria for a rating in excess of 10 percent for service-connected eczema have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2017). 2. From June 3, 2016, the criteria for a rating in excess of 60 percent for service-connected eczema have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. To begin, the Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Increased Rating Claims Here, the Veteran filed his claim for a compensable rating for his service-connected eczema of hands, feet and legs in January 2012. The RO increased his rating to 10 percent disabling effective February 17, 2011. The Veteran filed his notice of disagreement in October 2012, claiming his service-connected skin condition is worse than the 10 percent evaluation prior to June 3, 2016, and worse than the 60 percent evaluation from that date. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Under Diagnostic Code 7806, a 10 percent rating will be assigned where 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs were 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 the exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. A 60 percent rating is highest schedular rating for service-connected eczema. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). A Veteran can also be rated for disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801 -7805), depending upon the predominant disability. In Johnson v. Shulkin, the Federal Circuit held that the operative terms of Diagnostic Code 7806 were "systemic therapy" and "topical therapy," but not the exemplary reference ("such as") to corticosteroids. 862 F.3d 1351, 1354 (Fed. Cir. 2017). In that case the Federal Circuit determined 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." Id. at 1355. The Veteran was afforded a VA examination in June 2016. The RO scheduled the Veteran for an examination in May 2012, but he failed to appear for the appointment. Prior to June 2016, clinical records showed the Veteran used topical corticosteroids for his skin condition, but the area of involved skin was not reported. In private medical evidence with various entries from August 2013 to September 2014, there is no indication of treatment for a skin disorder. In fact, multiple entries indicate "no rash" for the Veteran's integumentary system. Likewise, in VAMC Salisbury and Fayetteville records prior to June 2016, denote a history of treatment for eczema/dermatitis. The records showed the Veteran was prescribed trolamine salicylate, a topical corticosteroid for his skin condition. However, the records are silent on the area of involved skin or other details on the Veteran's treatment that would warrant an evaluation higher than 10 percent. Lay statements from the Veteran and others have been associated with the claims file. These statements attest to the Veteran having visible skin problems on his hands, legs and feet. To the extent that they reference symptomology existing prior to June 2016, they do not quantify the extent of coverage of the skin disability. This evidence is insufficient to accurately determine the extent of the skin area affected and does not provide probative evidence that the Veteran's service connected skin disability had sufficient manifestation to warrant a rating in excess of 10 percent prior to June 2016. Based on the evidence of record, the Board finds that the record does not show that the Veteran's dermatitis affected at least 20 percent, of the entire body or exposed area prior to June 2016. The evidence does not show that the condition required intermittent systemic therapy or other immunosuppressive drugs at any time prior to June 3, 2016. Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran's symptomatology, including his complaints of itching and rash, is contemplated by the criteria under which his disability is currently rated. As such, his lay assertions do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. In sum, the preponderance of the evidence shows that the Veteran's dermatitis does not warrant a rating in excess of 10 percent prior to June 3, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Board has considered that Veteran under other diagnostic codes, specifically, DC 7800-7805, and note that the Veteran is already service-connected for superficial scars at 10 percent disabling. In regards to the Veteran's skin condition from June 3, 2016, the June 2016 C&P examination showed a diagnosis of dermatitis/eczema with constant/near constant treatment with corticosteroids involving 20-40% of total body and exposed areas. There was also a note that there are multiple fluid filled blisters of the fingers, hands, legs, feet and toes and the skin where the old blisters have healed is of darker pigmentation. No scarring was indicated in the examination. As such, a 60 percent disability is warranted as the Veteran has near constant systemic therapy during the past 12-month period, with 20 to 40 percent of the entire body affected and 20 to 40 percent of total exposed body area. This is the highest schedular evaluation under DC 7806, and as the evidence does not demonstrate nor does the Veteran contend that he suffers from symptomatology to warrant a potentially higher rating under a different diagnostic code for such symptoms as facial disfigurement and painful/unstable scarring, the Board need not address whether a higher rating is warranted. Accordingly, the preponderance of the evidence shows that the Veteran's dermatitis does not warrant a rating in excess of 60 percent from June 3, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Additionally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran was granted TDIU from August 2001; therefore, the Board's consideration of entitlement to TDIU is not needed. ORDER Entitlement to a rating in excess of 10 percent for eczema of the hands, legs, and feet, prior to June 3, 2016, and in excess of 60 percent thereafter is denied. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs