Citation Nr: 1807656 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-13 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to February 14, 2014 for eczematic dermatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty for training from September 1988 to March 1989 and active duty from December 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center, which granted service connection for eczematic dermatitis and assigned an initial rating of 10 percent, effective October 24, 2008. The VA Regional Office (RO) in St. Louis, Missouri has jurisdiction over the appeal. A March 2016 rating decision increased the rating for dermatitis to 60 percent, effective from February 14, 2014. In March 2016, the issue on appeal was remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDING OF FACT During the period prior to February 14, 2014, eczematic dermatitis was manifested by symptoms affecting less than 10 percent of the body, and 0 percent of exposed areas. No systemic medications or immunosuppressants were required. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for eczematic dermatitis have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board previously remanded this matter in March 2016. With respect to the issues decided, the Board instructed the RO to obtain any outstanding private and VA treatment records, and readjudicate the claim. VA attempted to obtain outstanding private treatment records in April 2016, however the Veteran failed to sign the requested medical release form and stated that she did not have any additional evidence to submit in support of her claim. The RO readjudicated the claim most recently in an August 2016 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran has not 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 duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. III. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In determining the present level of a disability in the context of an increased rating claim, the Board must consider applying "staged" ratings for diverse symptoms meeting the criteria for different ratings in distinct time periods. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's eczematic dermatitis is currently evaluated in two separate staged ratings. Only the period prior to February 14, 2014 is before the Board. Additional staged ratings are not applicable during the period on appeal. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's eczematic dermatitis is rated at 10 percent disabling prior to February 14, 2014 under Diagnostic Code (DC) 7806. Although not an issue before the Board, the Veteran's eczematic dermatitis is rated at 60 percent disabling from February 14, 2014 forward. Under DC 7806, a 30 percent disability rating is warranted when 20 to 40 percent of the entire body is affected; 20 to 40 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118. July 2008 private treatment records reflect that the Veteran experienced pink papular patches and thin plaques with several follicularly orientated pinpoint papules on her anterior and posterior thighs. She was given Vanos cream and Vaseline. August 2008 private treatment records note that the red patches on the Veteran's lower legs were improving. The Veteran was afforded a VA examination in June 2009. She reported using Vaseline and Got vanos cream to treat eczema. She had not been prescribed any systemic medications or immunosuppressants. Upon examination, the Veteran's scalp, face, neck and upper extremities were determined to be clear. Eczema was found on her lower extremities. The examiner determined that the Veteran's skin disability affected 0 percent of her body surface area involving exposed areas, and 5-10 percent of her body surface area involving unexposed areas. The examiner diagnosed the Veteran with dermatitis, favor eczematous, and determined that her disability was stable with Vaseline and small samples of vanos. The Veteran was afforded an additional VA examination in March 2010. The examiner continued to find that the Veteran's eczematous dermatitis was mild, found on her legs, and affected 5-10 percent of her body surface area. In February 2013, the Veteran argued that she was entitled to a higher evaluation for eczematous dermatitis because the skin disability not only affected her lower body, but her neck and her face. She reported taking cool showers in order to prevent irritation or flare-ups. The Veteran attended a VA examination in February 2014. She reported that her skin disability had worsened since her last examination. Upon examination, there was no evidence of eczematous dermatitis on the Veteran's head, face, or neck. The examiner concluded that the Veteran's skin disability affected 0 percent of her body surface areas involving exposed areas, and 20-40 percent of her body surface area involving unexposed areas. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted in this case. All of the objective medical evidence shows that the Veteran's eczematous dermatitis does not meet the criteria required for a 30 percent rating. Until the February 2014 examination, the total body area affected is well under 20 percent, as is the exposed body area affected, and there is no evidence of use of corticosteroids or immunosuppressant drugs. Additionally, it was during the February 2014 VA examination that the Veteran reported that her eczematic dermatitis had worsened, signifying an appropriate time in which to reassess, or stage, her disability evaluation. The Veteran did submit a statement in February 2013, in which she stated that her head, neck and face were also affected by eczematous dermatitis, however this is refuted by the medically competent February 2014 examiner. Privately prescribed topical corticosteroid use was not reported until the February 2014 VA examination. And, in April 2016, VA attempted to obtain the referenced private treatment records; but the Veteran failed to sign the requested medical release form and stated that she did not have any additional evidence to submit in support of her claim. To the extent that there is a conflict between the lay and medical evidence, we find the observations of a skilled professional to be more credible and more probative than lay assertions in this case. Accordingly, an initial rating in excess of 10 percent prior to February 14, 2014 for eczematic dermatitis is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent prior to February 14, 2014 for eczematic dermatitis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs