Citation NR: 9727089 Decision Date: 08/04/97 Archive Date: 08/14/97 DOCKET NO. 93-00 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an increased rating for chloracne secondary to Agent Orange exposure, currently evaluated as 10 percent disabling. 2. Entitlement to an effective date earlier than February 4, 1991, for service connection for chloracne secondary to Agent Orange exposure. WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1969, including one year of service in Vietnam. This matter arises before the Board of Veterans’ Appeals (Board) from an October 1991 rating decision of the Salt Lake City, Utah, Regional Office (RO), which denied service connection for chloracne secondary to Agent Orange exposure. The veteran appealed said rating action and the Board, after remand for additional development in October 1994, awarded service connection by a decision dated in August 1996. By rating action dated in November 1996, the RO assigned a 10 percent rating evaluation, effective February 4, 1991, the date the veteran was seen at the VA Medical Center with complaint of skin problems secondary to Agent Orange exposure. The veteran expressed disagreement with the 10 percent rating evaluation and has requested an increased rating for chloracne secondary to Agent Orange exposure. The veteran also disagrees with the effective date of the award of the rating evaluation. Preliminary review of the record reveals that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1996). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet.App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA’s Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected chloracne secondary to Agent Orange exposure warrants more than the 10 percent evaluation currently in effect. The veteran also contends that he is entitled to an effective date earlier than February 4, 1991, for the award of compensation for the chloracne secondary to Agent Orange exposure which is currently evaluated at 10 percent. Specifically, he seeks a retroactive award effective in 1984. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran’s claim for an increased rating for chloracne secondary to Agent Orange exposure, and the preponderance of the evidence is against the veteran’s claim for an effective date earlier than February 4, 1991. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran’s claim has been developed. 2. The veteran’s service-connected chloracne secondary to Agent Orange exposure includes extensive folliculitis; constant itching and extensive lesions; and significant disfigurement of trunk and proximal extremities. 3. The unappealed rating action of the RO dated in February 1985 is final. 4. The veteran filed a renewed claim for service connection for chloracne secondary to Agent Orange exposure on May 2, 1991. 5. The earliest possible effective date for an award of the rating evaluation for chloracne secondary to Agent Orange exposure could be the date of receipt of the veteran’s claim or the date the entitlement arose, whichever is later. CONCLUSIONS OF LAW 1. Chloracne secondary to Agent Orange exposure is no more than 30 percent disabling. 38 U.S.C.A. § 1155 (West 1997); 38 C.F.R. § 3.344 and Part 4, § 4.118, Diagnostic Code 7806 (1996). 2. The criteria for an effective date earlier than February 4, 1991, for the award of disability compensation has not been met. 38 U.S.C.A. §§ 5107(a), 5110(a) (West 1997); 38 C.F.R. §§ 3.157, 3.400(q)(1)(ii) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating for chloracne secondary to Agent Orange exposure Initially, the Board finds that the veteran’s claim is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a) (West 1997); Edenfield v. Brown, 8 Vet.App. 384, 388 (1995) (en banc); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Pursuant to 38 U.S.C.A. § 5107(a) (West 1997), the Board is obligated to assist the veteran in the development of his claim. Upon a review of the records, it is the opinion of the Board that all evidence necessary for adjudication of his claim has been obtained. The veteran contends that he was exposed to Agent Orange during service in Vietnam; that he had boils for which he received treatment at Dugway Proving Grounds within one year of leaving Vietnam; and that immediately after leaving service he would wake up with spots of blood on his pillowcase due to a scalp infection. The veteran was awarded service connection for chloracne secondary to Agent Orange exposure by decision of the Board dated in August 1996. By rating action dated in November 1996, the RO assigned a 10 percent rating evaluation, effective February 4, 1991, the date the veteran was seen at the VA Medical Center with complaint of skin problems secondary to Agent Orange exposure. For purposes of VA rating evaluations, the degree of disability of the skin problems secondary to Agent Orange exposure is determined by application of the criteria set forth in 38 C.F.R. Part 4, § 4.118, Diagnostic Code (DC) 7806 (1996) of VA’s Schedule for Rating Disabilities (Schedule). The veteran’s service-connected disability is currently evaluated as 10 percent disabling. A 10 percent rating is assigned when there is eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent rating is available where there is eczema with exudation or itching constant, extensive lesions, or marked disfigurement; and a 50 percent rating is available where there is eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant. The veteran was examined by VA in connection with his claim for an increased rating in October 1996. Physical examination revealed a few scattered papules and pustules on the scalp; 3 to 4+ follicular plugging as well as perifollicular papules, a few scattered nodules and scarring over the neck, back and buttocks; and plantar scaling on the feet. The assessment provided by examiner was acne vulgaris involving his back and buttocks, currently grade III in severity. VA medical progress notes dated in December 1996 indicate that the veteran has extensive folliculitis; constant itching and extensive lesions; and significant disfigurement of the trunk and proximal extremities. The examiner also noted that the veteran had grown a beard to conceal facial lesions. On the basis of the most recent VA medical records, the evidence supports a finding that the current condition is more consistent with a disability set forth in the Schedules as eczema with exudation or itching constant, extensive lesions, or marked disfigurement. Therefore, there is a basis for an increased rating evaluation in light of the findings and the requisite criteria of the rating schedule. The record demonstrates that the veteran’s disability is more consistent with a schedular evaluation rated as 30 percent disabling. Therefore, the evidence supports the veteran’s claim for an increased rating. II. Effective date earlier than February 4, 1991 The Board finds that the veteran’s claim is well grounded in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a) (West 1997); Edenfield, 8 Vet.App. at 388; Murphy, 1 Vet.App. at 81. Pursuant to 38 U.S.C.A. § 5107(a) (West 1997), the Board is obligated to assist the veteran in the development of his claim. Upon a review of the records, the Board finds that all of the evidence necessary for adjudication of this claim has been obtained. Therefore, the duty to assist the veteran with respect to this particular claim, as mandated by 38 U.S.C.A. § 5107(a) (West 1997), has been satisfied. The veteran initially filed a claim for service connection for his skin problems secondary to Agent Orange in June 1984. By rating action dated in February 1985, the RO denied service connection for sties on the eyelids, residual scar, pilonidal cyst, folliculitis or acne keloidalis of the scalp and nape of neck (claimed as scalp infection), facial acne and athletes foot. The veteran did not appeal this decision, thus it was final. 38 U.S.C.A. § 7105(c). In May 1991, the veteran filed a “new” claim for service connection for skin disorder due to Agent Orange which was denied by rating action dated in October 1991. The veteran appealed said rating action and the Board, after remand for additional development in October 1994, awarded service connection by decision dated in August 1996. By rating action dated in November 1996, the RO assigned a 10 percent rating evaluation, effective February 4, 1991, the date the veteran was seen at the VA Medical Center with complaint of skin problems secondary to Agent Orange exposure. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 1997) and 38 C.F.R. § 3.400 (1996). Unless specifically provided otherwise, the effective date of an original claim or a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C.A. § 5110(a) (West 1997). Additionally, the effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1) (West 1997). When a claim is received after final disallowance, the effective date is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (1996). In this case, the veteran did not submit his claim within one year from the date of discharge which would have been in August 1970. According to 38 C.F.R. § 3.157(b)(1) (1996), the date of outpatient examination will be accepted as the date of receipt of a claim if a claim specifying the benefit sought is received within one year from the date of such treatment. In the instant case, the veteran sought treatment for a skin condition on February 4, 1991. He submitted a claim to reopen on May 2, 1991. Clearly, he submitted correspondence specifying the benefit sought (service connection for a skin disorder) within one year from the date of such treatment. Therefore, the effective date of February 4, 1991, is correct. The Board is not unsympathetic to the veteran’s situation. However, the laws and regulations regarding the effective dates prevent the Board from reaching a different result. ORDER Entitlement to an increased rating of 30 percent, but not greater, for chloracne secondary to Agent Orange is granted. Entitlement to an effective date earlier than February 4, 1991, for the award of disability compensation for chloracne secondary to Agent Orange is denied. L. M. BARNARD Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -