Citation Nr: 1013369 Decision Date: 04/08/10 Archive Date: 04/29/10 DOCKET NO. 08-11 698 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for alopecia. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from March 1987 to March 2007. This appeal to the Board of Veterans' Appeals (Board) arises from a September 2006 rating decision in which the Winston- Salem, North Carolina RO, inter alia, granted service connection and assigned an initial noncompensable rating for alopecia, effective April 1, 2007. Since the Veteran had moved to Germany, the appeal was later transferred to the RO in Pittsburgh. In November 2007, the Veteran filed a notice of disagreement (NOD) as to the initial rating assigned. The RO issued a statement of the case (SOC) in February 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2008. The RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claim in July 2009. In a July 2009 rating decision, the RO assigned an initial 10 percent rating for alopecia, effective, April, 2007. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for her alopecia, the Board has characterized this issue on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although a higher initial rating for alopecia has been assigned, because a higher rating is available, and the Veteran is presumed and indicated that she wants to seek the maximum available benefit for a disability, the claim for higher rating remains viable on appeal. Id.; see also AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate the claim on appeal has been accomplished. 2. Competent evidence suggest hat, since the April 1, 2007 effective date of the grant of service connection, the Veteran's alopecia has been manifested by scarring that has affected 40 or more percent of the Veteran's scalp. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent rating for alopecia are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7830 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In view of the favorable disposition of the claim for a higher initial rating for alopecia (granting the rating sought), the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2009); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the United States Court of Appeals for Veterans Claims (Court) noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Historically, by rating action of August 2007, the RO granted service connection for alopecia and assigned a 0 percent rating under Diagnostic Code 7830 (pursuant to which alopecia is rated), effective April 1, 2007. See 38 C.F.R. § 4.118. As noted above, in a July 2009 rating decision, the RO assigned a 10 percent rating, effective April 1, 2007. Under Diagnostic Code 7830, a 0 percent rating is assigned for scarring alopecia affecting less than 20 percent of the scalp. A 10 percent rating is assigned if the disorder affects 20 to 40 percent of the scalp. A 20 percent rating is warranted if the disorder affects more than 40 percent of the scalp. Id. Under Diagnostic Code 7831, for alopecia areata, a 0 percent rating is assignable with loss of hair limited to the scalp and face. A 10 percent rating is warranted with loss of all body hair. Considering the medical evidence in light of the above-noted criteria, and affording the Veteran the benefit of the doubt, the Board finds that an initial 20 percent rating for the Veteran's alopecia is warranted, effective April 1, 2007. On VA examination in January 2007, the Veteran reported patchy hair loss in the center of her head that first occurred in 2005. On examination, in the central part of her skull, frontal parietal area, there was a small patch of hair thinning approximately 4x4cm. No other alopecia was noted. The diagnosis was alopecia. On examination in October 2007, a private doctor indicated that the Veteran was suffering from chronic scarring alopecia of the scalp. There was no treatment possible. On VA examination in October 2008, the Veteran reported a further increase in the hairless areas of her head since she separated from service. On examination, in the occipital region over the back of the head there was an area, "about the size of two palms", in which the hair was diffusely thinned out. In this area, one could no longer discern hair roots. The diagnosis was scarring alopecia. The aforementioned evidence reflects that the Veteran's disability has been manifested by chronic scarring alopecia of the scalp. While none of the examiners specified an exact percentage that the scarring alopecia affects the scalp, the October 2008 examiner estimated that the Veteran's alopecia affected an area "about the size of two palms". The Board finds that this description of the affected area of the Veteran's scalp seems to approximate 40 percent or more of the scalp. Arguably, the Veteran's alopecia has been at this level of disability since the effective date of the grant of service connection. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that, since the April 2007 effective date of the grant of service connection, the Veteran's alopecia seems to better approximate the criteria for a 20 percent rating. Accordingly, the Board finds that, consistent with the Veteran's request, an initial 20 percent rating (the highest assignable under Diagnostic Code 7830) is warranted from April 1, 2007. As the Board is granting the rating sought, discussion of the Veteran's entitlement to an even higher rating (under any other potentially applicable diagnostic criteria) is unnecessary. ORDER An initial 20 percent rating for alopecia, from April 1, 2007, is granted, subject to the legal authority governing the payment of compensation benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs