Citation Nr: 1806278 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-16 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for dermatitis prior to August 27, 2015, and a rating in excess of 60 percent from that date. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). The Veteran testified at a March 2013 hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing is associated with the claims file. In July 2016, the Veteran waived his right to an additional hearing. FINDINGS OF FACT 1. Prior to August 27, 2015, the Veteran's skin disability has been characterized by prescription of topical medication and coverage of less than 20 percent of the entire body; the need for systemic therapy such as corticosteroids or other immunosuppressive drugs has not been shown. 2. From August 27, 2015, the Veteran is in receipt of the highest schedular rating allowable based on his skin disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to August 27, 2015, for dermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.118, DC 7806 (2017). 2. The criteria for a rating in excess of 60 percent from August 27, 2015, for dermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.118, DC 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor any of his past representatives notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c) (2017). This appeal was remanded by the Board in April 2015 and in August 2017 for further development. Specifically, additional records were obtained and associated with the Veteran's claims file. The Veteran received a VA examination to determine the severity and extent of the Veteran's dermatitis. Further, pertinent records related to the Veteran's claim since April 2012 were obtained and associated with the claims file. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited 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). Increased Ratings The Veteran asserts that he is entitled to increased ratings for his skin disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2014); 38 C.F.R. Part 4 (2017). While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Prior to August 27, 2015 The Veteran's dermatitis has been assigned a disability rating of 10 percent rating prior to August 27, 2015, under 38 C.F.R. § 4.118, DC 7806 (addressing dermatitis or eczema). In order to warrant a rating in excess of 10 percent, there must be evidence of a skin disability that: * Covers 20 to 40 percent of the entire body; * Covers 20 to 40 percent of exposed areas (to include the hands, face and neck); or, * Requires the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the last 12-month period. 38 C.F.R. § 4.118, DC 7806 (2016) (30 percent). Based on the evidence of record, a rating in excess of 10 percent is not warranted. Specifically, at a Compensation and Pension examination in July 2009, the examiner indicated that the Veteran had a chronic rash since service. However, the examiner found that none of the exposed area was affected, nor was greater than 5 percent of the total body area affected. Further, the Veteran was being treated with an antihistamine, but was not receiving corticosteroids or immunosuppressive drug therapy. Further, the Veteran's VA treatment records during this period on appeal do not indicate that a rating in excess of 10 percent is warranted. Specifically, in March and April 2012, the Veteran had widespread pruritus. However, it was due to multiple etiologies, including not only his service-connected dermatitis, but also renal disease, hepatic disease, and underlying malignancy. The Veteran, in an April 2012 record, expressed concern that his dermatitis was more widespread than had been documented in the past. This is corroborated by a record from September 2012, which documented itching and redness from head to toe. While this may merit a rating in excess of 10 percent, the multiple etiologies of the Veteran's symptoms weigh against awarding an increased rating during this time period. Especially given that the Veteran was diagnosed with idiopathic pruritus prior to his award of service connection, the evidence does not show that the Veteran is entitled to an increased rating for this period. Based on the VA examination and treatment records, there is insufficient evidence to indicate that for the appeal period prior to August 27, 2015, the Veteran's skin disorder covered between 20 to 40 percent of his entire body or of exposed areas. Moreover, while the Veteran used over-the-counter topical creams, there is no indication that these creams contained corticosteroids. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Therefore, a rating in excess of 10 percent is not warranted. From August 27, 2015 The Veteran has been in receipt of a 60 percent rating for his service-connected skin disorder since August 27, 2015. This is the highest schedular rating available under 38 C.F.R. § 4.118, DC 7806. Therefore, any claim for a higher schedular rating under this specific diagnostic code must be denied. Other Considerations In considering whether a higher rating is warranted, the Board has considered the applicability of any other diagnostic codes. Specifically, DC 7806 states that the condition may alternatively be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. However, the evidence does not reflect that the Veteran has scarring or disfigurement from his skin disability. Further, the Board notes that the Veteran is already in receipt of separate ratings for scars on his right cheek and his chest. Thus, any additional compensation for these symptoms would be considered pyramiding. See 38 C.F.R. § 4.14 (2017). Therefore, no other relevant diagnostic code is for application. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his dermatitis is worse than the ratings he currently receives. Specifically, the Veteran indicates that due to flare-ups, his dermatitis covers a larger area of his body than is reflected in his treatment records and July 2009 VA examination. 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 her service-connected 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"). In this case, the Veteran is competent to describe his symptoms, but he is not competent to assert that his symptoms require higher disability ratings than he receives. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during both appeal periods, and who have rendered pertinent opinions in conjunction with the evaluations. Specifically, while the Veteran is competent to report the extent of his symptoms, his examiners are more qualified to determine the etiology of his dermatitis for the time period prior to his 2015 VA examination. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that the Veteran's current rates accurately address his symptoms for the relevant periods. Next, an extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1) (2015). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court of Appeals for Veterans Claims explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. In this case, the Board has carefully compared the level of severity and symptomatology of the Veteran's dermatitis, and finds that the Veteran's symptomatology is fully addressed by the rating criteria under which he is currently evaluated. In this regard, as noted above, the Veteran's current rating for his dermatitis contemplates the frequency and severity of his symptoms. Accordingly, the Board finds that the schedular rating criteria in this case are adequate to evaluate the Veteran's disabilities. It follows that referral for extraschedular consideration is not warranted. ORDER An initial disability rating in excess of 10 percent for a skin disorder, characterized as dermatitis, prior to August 27, 2015, and in excess of 60 percent from that date, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs