Citation Nr: 18106922 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 11-28 883A DATE: June 1, 2018 ORDER Entitlement to an evaluation in excess of 60 percent for service-connected polymorphic light eruption syndrome is denied. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular evaluation appropriate for his symptoms associated with polymorphic light eruption syndrome. 2. A diagnosis of exfoliative dermatitis is not of record, and the symptoms associated with the Veteran’s service-connected polymorphic light eruption syndrome are not congruent with manifestations of this diagnosis and do not approximate burn scars of the head, face, and/or neck. CONCLUSION OF LAW The criteria for an evaluation in excess of 60 percent for service-connected polymorphic light eruption syndrome have not been satisfied or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Codes 7800 - 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1981 to September 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran expressed disagreement with this determination in a timely manner, and the present appeal ensued. The Veteran relocated several times during the pendency of the appeal, and jurisdiction and the appeal was eventually transferred to the VARO in Winston-Salem, North Carolina, from where it was certified to, and received by, the Board. In his November 2011 substantive appeal, the Veteran requested to present oral testimony to a member of the Board at a videoconference hearing. In response, the RO scheduled the Veteran for a hearing at the RO in May 2016. However, one week before the hearing was to take place, the Veteran submitted a statement reflecting that he no longer wished to participate in such a hearing. The Veteran has not requested that the hearing be rescheduled, as thus, the Veteran's prior hearing request is deemed withdrawn, and the Board may adjudicate the issue on appeal without prejudice to the Veteran. See 38 C.F.R. § 20.704 (d) (2017). In June 2016 and October 2017, the issue on appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary and procedural development. The Board’s prior remand directives have been substantially completed, and his appeal has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In a March 2017 rating decision, the AOJ established service connection for herpes simplex and merged that disability with his service-connected polymorphic light eruption syndrome for rating purposes. This resulted in a partial allowance of the issue on appeal, as the evaluation for this merged issue was increased from 10 percent to 60 percent, effective from October 1, 2009. However, as this partial allowance did not constitute a full grant of the benefits sought, the issue remained in appellate status for the entirety of the appeal period. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In a concurrent March 2018 rating decision and Supplemental Statement of the Case (SSOC), the AOJ bifurcated the issue on appeal at the time, assigning a separate 60 percent initial evaluation for the Veteran’s service-connected herpes simplex, effective from October 1, 2009, in addition to the 60 percent evaluation assigned for his service-connected polymorphic light eruption syndrome. See e.g., Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). While the issue on appeal (regarding polymorphic light eruption syndrome) remains in appellate status, the Veteran has not expressed disagreement with the assigned initial evaluation or effective date for his service-connected herpes simplex. As such, the latter issue is not in appellate status. Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C. § 7105 (a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). Entitlement to an evaluation in excess of 60 percent for service-connected polymorphic light eruption syndrome. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (the Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran’s service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Here, a letter sent to the Veteran October 2009 satisfied the VCAA notice requirement for the Veteran’s appeal regarding and increased evaluation because it provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. This letter, among others, informed the Veteran how VA determine disability ratings and effective dates, and also outlined that, for his initial claim to prevail, the evidence needed to show that his service-connected disability had worsened since last rated. VA also has a duty to assist the Veteran in the development of his appeal. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination, when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and VA medical treatment records have been obtained and associated with the file. To the extent that one of the Board’s prior remand directives was to obtain updated VA treatment records and associate them with the file, this was substantially completed by the AOJ after each Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication, to include from the Veteran, that there are outstanding private treatment records related to his service-connected polymorphic light eruption syndrome. Additionally, all reasonably identified private treatment records regarding this disability on appeal have been sought and obtained, and there is no evidence that the Veteran receives disability benefits from the Social Security Administration (SSA). See 38 C.F.R. § 3.159 (c) (2) and Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Concerning VA’s duty to provide the Veteran with an adequate VA examination in connection with his appeal, the record reflects that the Veteran underwent VA examination to determine the frequency and severity of the symptoms associated with his service-connected skin disability symptoms in April 2010, February 2017, April 2017, and March 2018. As noted by the Board in the June 2016 and October 2017 remands, the April 2010, March 2017, and April 2017 VA examinations were found to be inadequate for the purpose of adjudicating the appeal. However, in light of the evidence added to the file since the October 2017 Board remand, to include the March 2018 VA examination report and a February 2018 statement from the Veteran’s private physician, the Board concludes that the VA examinations of record, when considered as a whole, are found to be adequate and indicative of the Veteran’s symptomatology. As such, the Board concludes that the prior remand directive has been substantially completed, and thus, VA’s duty to assist the Veteran has been fulfilled. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, D'Aries, and Dyment, all supra. As the Veteran has not identified any additional evidence pertinent to his appeal, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board’s adjudication of his appeal. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is currently in receipt of a 60 percent evaluation for his service-connected polymorphic light eruption syndrome under 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). The Board observes that this is the highest schedular evaluation available under this Diagnostic Code, and the Veteran has not asserted that an increased evaluation for this service-connected disability is warranted on a schedular or extraschedular basis under this, or any other, Diagnostic Code. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Rather, throughout the pendency of the appeal, the Veteran has advocated for a separate evaluation for his herpes simplex, and as noted above, this was established by the AOJ in the concurrent March 2018 rating decision and SSOC. Nonetheless, the Board notes that the only two Diagnostic Codes which provide for an evaluation in excess of 60 percent for a skin disability are not germane to the issue on appeal. Specifically, the VA examinations of record rule out a diagnosis exfoliative dermatitis (erythroderma), and thus, the provisions and criteria of Diagnostic Code 7817 are not for application. Likewise, regarding Diagnostic Code 7800, while the Board notes that the Veteran’s service-connected polymorphic light eruption syndrome effects his head, neck, and face, there is no evidence, to include from the Veteran, his private physicians, or the VA examiners, that this service-connected skin disability results in any scarring and/or disfigurement of head neck and/or face. In sum, the Veteran is in receipt of the highest schedular evaluation available under any applicable Diagnostic Code pertinent to disabilities of the skin. 38 C.F.R. § 4.118 (2017). While other Diagnostic Codes provide for an evaluation in excess of 60 percent, the manifestations of the Veteran’s service-connected polymorphic light eruption syndrome are not analogous of the rating criteria contained therein. As such, an increased evaluation is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel