Citation Nr: 1808846	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-21 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to an initial compensable rating, for the period of March 1, 2011 to January 7, 2014 for eczema (currently rated 60 percent, effective January 7, 2014).

2. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder with major depressive disorder and residuals, traumatic brain injury (formerly rated as dysthymic disorder with insomnia).

3. Entitlement to a rating in excess of 20 percent for right shoulder strain.

4. Entitlement to a rating in excess of 10 percent for lumbar strain.

5. Entitlement to a rating in excess of 10 percent for cervical strain.

6. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome.

7. Entitlement to a compensable rating for residuals of a right ankle sprain.

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Marine Corps from May 2000 to February 2011.

Effective October 2017, a total disability evaluation based on individual unemployability is in effect. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision of the Louisville, Kentucky, Regional Office (RO). The Philadelphia, Pennsylvania RO has current jurisdiction.

In June 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record.

The issues regarding PTSD, a right shoulder strain, lumbar strain, cervical strain, right knee patellofemoral syndrome, and right ankle sprain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.




FINDING OF FACT

During the period of March 1, 2011 to January 7, 2014, the Veteran's eczema has not covered more than 5 percent of her body and has not been characterized by whole body treatment amounting to systemic therapy. The Veteran's skin had no disfigurement, tissue loss, inflexibility, hypopigmentation, hyperpigmentation, or limitation of motion.


CONCLUSION OF LAW

The criteria for an initial rating of 60 percent, for the period of March 1, 2011 to January 7, 2014, for eczema have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.118, Diagnostic Code 7806 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). 

Under Diagnostic Code 7806, a rating of 0 percent is warranted if 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.

A rating of 10 percent is warranted if 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. Id.

A rating of 30 percent is warranted if 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. Id.

A rating of 60 percent is warranted if 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. Id.

Diagnostic Code 7806 also advises, if applicable, to rate disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id.

The use of topical corticosteroid treatment, such as skin creams, does constitute "systemic therapy" under 38 C.F.R. § 4.118. Johnson v. Shulkin, No. 2016-2144, 2017 U.S. App. LEXIS 12601, at *11 (Fed. Cir. July 14, 2017).

Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

In November 2011, the Veteran was afforded a VA examination. The Veteran indicated that her eczema has affected her hands, lower legs, and scalp, beginning in 2003 and has resulted in the use of a topical corticosteroid three times daily for the preceding 12 months. Upon examination the clinician noted skin lesions covering approximately one percent of the total body area and reported no disfigurement, tissue loss, inflexibility, hypopigmentation, hyperpigmentation, or limitation of motion. 

In January 2014, the Veteran was afforded a VA examination. The Veteran indicated eczema affected her face, neck, hands, arms, legs, and back. The clinician noted total affected body area between 5 and 20 percent and reported the constant or near constant use of both oral and topical treatments for the Veteran's eczema.

During the Veteran's June 2017 hearing testimony she reported her eczema had been unchanged since its original diagnosis in-service but also stated that her condition can be better or worse depending on how recently she received a steroid shot and whether or not she is having an outbreak. 

During the period of March 1, 2011 to January 7, 2014, the Veteran's eczema has not covered more than 5 percent of her body and has not been characterized by whole body treatment amounting to systemic therapy. The Veteran's skin had no disfigurement, tissue loss, inflexibility, hypopigmentation, hyperpigmentation, or limitation of motion.

Given these facts, the Board finds that a non-compensable rating is warranted under Diagnostic Code 7806 for eczema. A compensable rating is not warranted under Diagnostic Code 7806 because, during the period on appeal, the Veteran's eczema did not cover more than 5 percent of her body and the Veteran was not undergoing systemic treatment. The Board notes the Veteran's current 60 percent rating for eczema is the schedular maximum. The claim for award of an initial compensable rating for eczema is denied.


ORDER

Entitlement to an effective date prior to January 7, 2014, for the award of a compensable rating for eczema is denied.


REMAND

Remand is necessary because the Veteran has asserted that her service connected disabilities have worsened at her June 2017 hearing. Given her subjective reports, the record is not sufficient to adjudicate the claim without further medical development. 

The case is REMANDED for the following action:

1. Request that the Veteran provide the names and addresses of any and all health care providers who provided treatment for her PTSD, right shoulder strain, lumbar strain, cervical strain, right knee patellofemoral syndrome, or right ankle sprain. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file or e-folder. 

2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and her representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.



The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs