Citation Nr: 20043341 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 15-32 031 DATE: June 26, 2020 ORDER Entitlement to a 60 percent disability rating for service-connected prurigo nodularis from January 20, 2014 to April 11, 2019 is granted. Entitlement to a disability rating in excess of 60 percent for service-connected prurigo nodularis from April 12, 2019 is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. FINDINGS OF FACT 1. The medical and lay evidence is at least evenly balanced as to reflect that service-connected prurigo nodularis from January 20, 2014 to April 11, 2019 more closely approximates lesions encompassing more than 40 percent of total body area and the preponderance of the evidence shows that prurigo nodularis is the predominant disability. 2. As of April 12, 2019, the Veteran is in receipt of the highest schedular rating allowed under Diagnostic Code 7608 and the preponderance of the evidence shows that prurigo nodularis is the predominant disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 60 percent disability rating for service-connected prurigo nodularis from January 20, 2014 to April 11, 2019 are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2017) and (2019). 2. The criteria for entitlement to disability rating in excess of 60 percent for service-connected prurigo nodularis from April 12, 2019 are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to December 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for gastroesophageal reflux disease and entitlement to a compensable disability rating for service-connected prurigo nodularis. In June 2016, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In a December 2018 decision, the Board denied the Veteran’s claims for entitlement to service connection for a gastrointestinal disorder and entitlement to a compensable disability rating for service-connected prurigo nodularis, among other claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion) requesting that the Court vacate the Board's decision that denied the Veteran’s claims for entitlement to service connection for a gastrointestinal disorder and entitlement to a compensable disability rating for service-connected prurigo nodularis and remand the case to the Board for further development and readjudication. In a December 2019 Order, the Court granted the Joint Motion. The case was returned to the Board. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In April 2020, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. In April 2020, the Veteran informed the Board that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. Additional, relevant VA treatment records and a July 2019 VA examination report were associated with the claims file after the July 2015 statement of the case. Although the AOJ did not consider these records in a supplemental statement of the case, the additional, relevant VA treatment records and July 2019 VA examination were considered by the AOJ in a July 2019 rating decision. Thus, the AOJ considered the additional relevant evidence and readjudicated the issue on appeal. As such, the Board finds no prejudice to the Veteran in the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). While the appeal was pending before the Court, the RO granted in increase rating to 60 percent, effective April 12, 2019, for prurigo nodularis with scars and onychomycosis in a July 2019 rating decision. 1. Entitlement to a compensable disability rating for service-connected prurigo nodularis from January 20, 2014 to April 11, 2019. 2. Entitlement to a disability rating in excess of 60 percent for service-connected prurigo nodularis from April 12, 2019. The Veteran contends that his prurigo nodularis warrants a compensable disability rating greater than 30 percent throughout the relevant appeal period. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, as in this case, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s prurigo nodularis was evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7803 (unstable, superficial scar) prior to April 12, 2019 and under 38 C.F.R. § 4.118, Diagnostic Code 7806 as of April 12, 2019. As an initial matter, when the Veteran filed his increased rating claim for prurigo nodularis, Diagnostic Code 7803 was no longer listed in the rating criteria. Disability ratings for scars between August 30, 2002 and October 2008, provided that a 10 percent disability rating was warranted for unstable, superficial scars under Diagnostic Code 7803. The rating criteria for skin disorder under 38 C.F.R. § 4.118 were amended effective October 23, 2008 and Diagnostic Code 7804 was changed to evaluate scars that are unstable or painful. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disabling. Three or four scars that are unstable or painful are assigned a 20 percent disabling. Five or more scars that are unstable or painful warrant a 30 percent disability rating. Diagnostic Code 7804, note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Diagnostic Code 7804, note (2). Furthermore, scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Diagnostic Code 7804, note (3). During the pendency of the appeal, the rating criteria for evaluating skin disorders under 38 C.F.R. § 4.118 were amended effective August 13, 2018. 83 Fed. Reg. 32583 (July 13, 2018). These amendments revised Diagnostic Codes 7806, to state that disabilities evaluated under this diagnostic code should be evaluated under the General Rating Formula for the Skin. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to August 13, 2018 and both the old and new rating criteria from August 13, 2018, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change effective August 13, 2018, under Diagnostic Code 7806, a 10 percent disability rating is warranted where 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 are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs were 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 where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there was constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. As of August 13, 2018, under the amended criteria, the General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating will be warranted where there is at least one of the following: characteristic lesions involving 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 intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where there is at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent disability rating is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 U.S.C. § 4.118(a). Alternatively, dermatitis is to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Turning to the evidence of record, the Veteran underwent a VA examination for skin diseases in September 2014. The examiner noted that the Veteran was diagnosed with prurigo nodularis. The examiner did not document the Veteran’s reported symptoms of his skin condition. The examiner determined that the Veteran’s skin condition did not cause scaring and he did not have any systemic manifestations due specifically to any skin diseases. The examiner documented that the Veteran had not been treated with oral or topical medications in the past twelve months or any other treatment or procedures other than systemic or tropical medications in the past twelve months. The Veteran did not have any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past twelve months. With respect to whether the Veteran had any visible skin conditions the examiner was supposed to indicate the approximate total body areas and approximate total exposed body area (face, neck and hands) affected; however, the examiner documented that the Veteran did not have any of the above listed visible skin conditions. The examiner documented that there was no evidence of prurigo nodularis or rashes present at the time of the examination. While the Veteran may not necessarily be competent to diagnose prurigo nodularis, he is competent to describe the frequency, severity, and duration of his skin rashes or breakouts, and there is no reason to doubt his credibility in this regard. The Veteran testified at the June 2016 Board hearing that his skin disabilities reoccurred about six or seven times in the past year. He explained that he gets the rashes or breakouts all over his body, including his hands, arms, back of the head, back of the neck, hairline, back, buttocks, and legs. The Veteran noted that he saw his primary care physician every six months with respect to his skin condition and he received a standard refill of his prescription for an antibiotic cream to treat his skin disorder every month. He used the antibiotic cream during flare-ups. The Veteran indicated that his skin disability had not increased in severity. The Veteran clearly and accurately reported his symptoms from the basis of personal experience and knowledge. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Finally, the Veteran was provided with a VA examination in June 2019. The VA examiner diagnosed the Veteran with prurigo nodularis based on the examination. The Veteran reported that in 1970 he began experiencing skin lesions, rash, excoriation, and itching. The skin condition had been treated with skin creams, antibiotic creams, and freezing. The examiner noted that the skin condition was not resolved. The Veteran’s prurigo nodularis was treated with topical triamcinolone acetonide for six weeks or more, but not constant, in the last twelve months. Prurigo nodularis was also treated with topical Bacitracin constant or near-constant in the past twelve months. The examiner documented that the Veteran’s prurigo nodularis encompassed 5 percent to less than 20 percent of exposed area and more than 40 percent of total body area. The examiner observed that the Veteran’s prurigo nodularis were similar to keloids, hyperpigmented, and pruritic located on areas of the back, chest, stomach, right lower extremity, left lower extremity, hairline and scalp. The examiner noted that in the past it also was located on the hands. The June 2019 VA examination report for skin diseases documents that the Veteran’s prurigo nodularis caused scarring. A June 2019 VA examination for scars revealed that the Veteran has scars on the trunk or extremities and of the head, face, or neck. The scares of the trunk or extremities were not painful or unstable. The examiner noted that there were too numerous to count (TNTC) scars scattered across the bilateral upper extremities, bilateral lower extremities, anterior trunk, and posterior trunk. Approximate total area of scars of the right upper extremity was five percent of total body area, of the left upper extremity was five percent of total body areas, of the right lower extremity was seven percent of total body area, of the left lower extremity was seven percent of total body area, of the anterior trunk was 12 percent of total body area, and posterior trunk was 12 percent of total body area. There were no scars with underlying tissue damage. The scars of the head, face or neck were not painful or unstable. The scars were too numerous to count. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The scars of the head, face, and neck had hyperpigmentation (5 percent to less than 20 percent of exposed body area), induration and inflexibility (5 percent to less than 20 percent of exposed body area), and abnormal texture (5 percent to less than 20 percent of exposed body area). There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scars did not result in limitation of function or any other pertinent physical findings, complications, conditions, signs, and/or symptoms. The examiner noted that the Veteran’s scars interfere with swimming, working/being in the heat, and having to use medication daily. The Veteran can perform strenuous and sedentary activities id he can avoid his limitations. Based on the medical and lay evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran’s service-connected prurigo nodularis more closely approximates lesions affecting more than 40 percent of total body area throughout the entire appeal period warranting a 60 percent disability rating under Diagnostic Code 7806 (2017) and (2019). In this regard, although the September 2014 VA examiner did not observe any active lesions at the time of examination, the Veteran provided competent and credible testimony at the June 2016 Board hearing that he experienced flare-ups of prurigo nodularis six or seven times a year all over his body, including his hands, arms, back of the head, back of the neck, hairline, back, buttocks, and legs. He indicated at the hearing that his skin disability had not increased in severity. A July 2016 VA treatment record documents that the Veteran had lesions and itching, but it did not describe the number of lesions or the location of such lesions on the body. An August 2016 VA treatment record documents that the Veteran requested a consult with dermatology due to pain and outbreaks to the abdomen, legs, and back of neck. Further, the June 2019 VA examination documents that more than 40 percent of total body area The Board also finds it persuasive that VA treatment records prior to the appeal period show that the Veteran had papules on the extremities and trunk and there was hyperpigmented scaring over his chest back, arms and legs. A June 2001 VA examination documents that the Veteran had a long history of itchy pruritic lesions that occur all over his body for the last 30 years. Thus, the September 2014 VA examination appears to have been conducted when the Veteran was not having a flare-up of the service-connected skin disability and the other medical and lay evidence of record reflects that the Veteran consistently experienced recurrent flare-ups of prurigo nodularis on his abdomen, legs, arms, hands, back, back of neck, back of head, and hairline, which encompass more than 40 percent of total body area throughout the appeal period. Under Diagnostic Code 7806 prior to August 13, 2018 and as of August 13, 2017, under the amended criteria for the General Rating Formula of the Skin, dermatitis, eczema, or characteristic lesions involving more than 40 percent of the entire body warrants a 60 percent disability rating. This is the highest schedular rating available under Diagnostic Code 7806 (2017) (2019). The Board has considered whether the Veteran is entitled to a higher disability rating for his scars. Specifically, Diagnostic Code 7806 (2017) and the General Rating Formula of the Skin both direct the rater to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. Diagnostic Code 7800 is the only diagnostic code that evaluates scars, which provides a disability rating higher than 60 percent. Specifically, under Diagnostic Code 7800, scars of the head, face, or neck with visible or palpable tissue loss and either gross distortion or symmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent disability rating. The medical evidence shows that there were not gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran did not have a scar 5 or more inches in length or scar at least one-quarter inch wide at the widest part. The surface contour of the scars was not elevated or depressed on palpation. The evidence shows that the scars were not adherent to underlying tissue damage. Furthermore, the evidence reflects that the scars do not have underlying soft tissue damage. However, the June 2019 VA examination reflected that the scars were hyperpigmented, indurated and inflexible, and abnormal in texture. Thus, the scars resulted in three characteristics of disfigurement. Accordingly, the scars related to the Veteran’s service-connected prurigo nodularis do not more closely approximate an 80 percent disability rating under Diagnostic Code 7800 and therefore are not considered the predominant disability. In conclusion, the evidence is at least evenly balanced as to whether the Veteran’s service-connected prurigo nodularis more closely approximates a 60 percent disability rating as of January 20, 2014. Accordingly, entitlement to a disability rating of 60 percent for service-connected prurigo nodularis from January 20, 2014 to April 11, 2019 is granted and a disability rating in excess of 60 percent from April 12, 2019 is denied. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder. The November 2019 Joint Motion notes that the Veteran was not afforded a VA examination to address the etiology of his gastrointestinal disorder and that the parties agree that the Board erred in the December 2018 decision by not addressing whether a VA examination or medical opinion was required in this case. VA treatment records reflect that the Veteran has a current diagnosis of GERD. The Veteran testified at a June 2016 Board hearing that he experienced stomach problems during active military service with recurrent symptoms since service to the present. He explained that he did not seek treatment for his stomach problems in service, but he sought treatment from a private physician (gastroenterologist) within a year after discharge. The Veteran testified that his symptoms were later diagnosed with duodenal ulcer, peptic ulcer, gastritis, and GERD. There is a “low threshold” when assessing the need for a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the Veteran’s lay statements indicate that there may be an association between his current diagnosis of GERD and his symptoms in service, a VA examination and medical opinion to determine if the Veteran’s current diagnosis of GERD had its onset in or is otherwise related to active military service is necessary in order properly adjudicate this claim. The matter is REMANDED for the following action: Arrange for the Veteran to undergo a VA examination by an appropriate medical specialist to evaluate his service connection claim for a gastrointestinal disorder to include GERD. The contents of the entire, electronic claims file to include a complete copy of this REMAND, must be made available to the examiner, and the report should reflect full consideration of the Veteran’s documented medical history and lay assertions. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s GERD or any other stomach/gastrointestinal disorder found on examination or documented in the claims file had its onset during service or is otherwise medically related to service-to include any documented inservice complaints of upset stomach. In rendering the requested opinions, the examiner must consider and discuss all in and post-service medical and other objective evidence, as well as all lay assertions, to include the Veteran’s competent assertions as to the nature, onset, and continuity of symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. Thus, competent lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.