Citation Nr: 1808902 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-04 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for dermatitis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for dermatitis with an initial noncompensable rating, effective February 24, 2010. In June 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2015, the Board remanded the case for additional development. Thereafter, in a September 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted an initial rating of 10 percent for the Veteran's dermatitis, effective February 24, 2010. As the increase did not satisfy the appeal in full, such issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2015, the Veteran submitted additional evidence with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2017); see also section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. Therefore, the Board may properly consider such evidence. FINDING OF FACT For the entire appeal period, the Veteran's service-connected dermatitis has not affected more than 20 percent of his entire body or exposed areas, or required systemic therapy, and did not result in disfigurement, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Although the Veteran has generally contended that the August 2015 VA examiner did not fully review photographs of his skin disorder, or address his alleged residual scarring, which will be addressed further herein, neither he nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (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). II. Analysis 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See id. at 126. The Veteran's service-connected dermatitis is currently rated as 10 percent disabling as of February 24, 2010, pursuant to DC 7806. 38 C.F.R. § 4.118. In this regard, DC 7806 provides a 10 percent rating where dermatitis results in at least 5 percent, but less than 20 percent, of the entire body affected, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is warranted if the dermatitis results in 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 60 percent rating 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 required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. DC 7806 also provides that dermatitis may be rated under DCs 7800-7805, depending on the predominant disability. Such DCs provide compensable ratings for disfigurement of the head, face, or neck (DC 7800), scars that are at least six square inches (39 sq cm) (DCs 7801, 7802), or scars that are unstable or painful (DC 7804). Additionally, DC 7805 provides that any disabling effect not considered in a rating provided under DCs 7800-04 should be evaluated under an appropriate DC. The Veteran generally contends that his dermatitis affects between 20 and 40 percent of his body and, as such, he is entitled to an initial rating in excess of 10 percent. Specifically, in an October 2015 statement, he stated that he has open sores on his back, chest, upper leg, and knee. He included pictures of these sores, which he had also brought to the August 2015 examination, although he stated that the examiner did not review them. The Veteran further contends that these sores affect between 20 and 40 percent of his entire body. He also stated that he experiences periodic pain in the residual scars resulting from the sores. Additionally, at his July 2014 hearing, the Veteran described his dermatitis as tiny blisters that will sometimes break open into sores when rubbed. He reported that the blister or sores will appear on his legs below his knees, his feet, chest, and lower back along the belt line. At that time, he reported the residual scars did not bother him in any way, did not itch, and did not hurt. The Board finds that an initial rating in excess of 10 percent for the Veteran's dermatitis is not warranted. In this regard, although the Veteran has testified to the extent of his symptoms and contends that they affect more than 20 percent of his entire body, the medical evidence of record contradicts his assertions. In June 2012, the Veteran was afforded a VA examination for his skin condition. At such time, he reported that he had a rash one to two times monthly that lasted one to two days that was not painful or pruritic. He indicated that it sometimes turned into "sores," and occurred mainly on his bilateral legs below the knees and sometimes on the abdomen/back in the belt line. The examiner described his skin disorder as manifested by a very faint redness, in a lace-like pattern, affecting the posterior right leg. He also noted evidence of healed lesions on the Veteran's bilateral feet and back. The examiner then concluded that less than 5 percent of the Veteran's body was affected by the skin disorder, noting the Veteran reported recurrences of the disorder a couple of times a month. Pursuant to the Board's July 2015 remand, the Veteran was afforded another VA examination in August 2015. At such time, the examiner noted the Veteran's history from the prior examination. He also recorded the Veteran's reports that his dermatitis manifested as a rash that begins as small flesh colored bumps scattered over his abdomen, chest, lower legs, feet, and lower back along the belt line. The Veteran reported they are almost constant, and usually dry up and go away, but will sometimes blister, then pop, leaving a scar. The Veteran further denied that his skin condition itched and reported that it did not hurt unless he burst the blisters. Upon examination, the examiner found no current blisters, but she reviewed the photos in the file and those which the Veteran brought, and described them in detail. She indicated that approximately 10 percent of the Veteran's entire body was affected by the dermatitis. The examiner also noted that she found no specific scarring. She noted that the Veteran's skin has aged and is consistent with age-related pigmentation changes and chronic sun-related changes. The Veteran indicated the areas he considered scars from his skin condition; however, the examiner opined they are more likely due to the sun-related and age-related changes referenced above. She found no evidence of scarring associated with the Veteran's dermatitis. The Board finds the August 2015 VA examiner's opinion highly probative to the nature and severity of the Veteran's dermatitis. In this regard, the examiner conducted an in-person examination of the Veteran, in which she found the Veteran's skin condition affected approximately 10 percent of his entire body, and in which she found no scarring related to the skin condition, specifically referencing the areas the Veteran indicated he believed were scars due to the dermatitis. In order to determine the full extent of the Veteran's condition, in case the examination did not occur during a flare-up, the examiner also reviewed the photos in the file and those which the Veteran brought with him, showing the areas affected by the condition on a flare-up and the full severity of the symptoms. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994); Voerth v. West, 13 Vet. App. 117, 122-23 (1999). While the Veteran contended in an October 2015 statement that the pictures of the open sores he brought to the examination were not reviewed, the examiner clearly indicated that she reviewed the photos the Veteran brought and described them in detail. Although the review may not be what the Veteran expected, the Board presumes the VA examiner carried out her duties in a regular manner. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). Furthermore, as required by the July 2015 Board remand, the examiner considered the Veteran's complaints of flare-ups, including a review of photos of such. Her opinion considered all of the pertinent evidence of record, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Moreover, she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board affords such opinion great probative weight. Furthermore, while VA treatment records reflect that the Veteran was prescribed topical antifungal cream for his skin rash in May 2010, and was prescribed triamcinolone cream .025% and ketoconazole cream 2% for jock itch in January 2011, the June 2012 and August 2015 VA examiners found that the Veteran had not been treated with oral or topical medications, or any other form of treatment, in the prior 12 months for his skin condition. Therefore, based on the foregoing, the Board finds that an initial rating in excess of 10 percent under DC 7806 is not warranted for the Veteran's dermatitis as such has not affected more than 20 percent of his entire body or exposed areas, or required systemic therapy. The Board has also considered the applicability of other potential DCs referable to the evaluation of skin disabilities. However, as the evidence of record fails to demonstrate that the Veteran's dermatitis results in disfigurement, symptomatic scarring, scarring of a size so as to warrant a compensable rating, or additional functional impairment, he is not entitled to a higher or separate rating under DCs 7800-7805. In this regard, the June 2012 and August 2015 VA examiners reported that there was no scarring or disfigurement of the Veteran's head, face, or neck. Additionally, the August 2015 VA examiner found no evidence of residual scarring, indicating the areas the Veteran believed were scars were attributable to age-related and sun-related changes. Consequently, any itching or pain he experiences related to such scars are unrelated to his dermatitis. Furthermore, both VA examiners found no functional impairment associated with the Veteran's dermatitis. As such, the Veteran is not entitled to a higher or separate rating under DCs 7800-7805. In making its determination in this case, the Board acknowledges the Veteran's belief that his skin symptoms are more severe than the current disability rating reflects. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria, or attribute his claimed scarring to his dermatitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As above, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more probative than his own reports regarding the severity and manifestations of such condition. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected dermatitis; however, the Board finds that his symptomatology has been stable during the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, based on the foregoing, the Board finds that an initial rating in excess of 10 percent for the Veteran's dermatitis is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7 ORDER An initial rating in excess of 10 percent for dermatitis is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs