Citation Nr: 0313662 Decision Date: 06/23/03 Archive Date: 06/30/03 DOCKET NO. 99-16 869 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable rating for the period from September 16, 1997, to August 12, 2001, and a rating in excess of 10 percent for the period from August 13, 2001, for dermatophytosis and eczema of the jock area. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Counsel INTRODUCTION The veteran served on active duty from December 1987 to February 1992, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Winston-Salem, North Carolina RO that assigned a noncompensable evaluation for a skin disorder of the jock area, effective September 16, 1997, after granting service connection for this disability. When this case was most recently before the Board in November 2002, it was remanded for additional development. By rating decision dated in April 2003, the rating for a skin disorder of the jock area was increased to 10 percent, effective August 13, 2001. Thereafter, the veteran continued his appeal. [Parenthetically, the Board notes that, by rating decision dated in April 2003, the RO denied entitlement to a skin disability of the arms, neck and legs. The veteran has not appealed this decision and it is not a part of the instant appeal.] FINDINGS OF FACT 1. For the period from September 16, 1997, through August 12, 2001, the veteran's service-connected dermatophytosis and eczema were manifested by the presence of a fungal infection in the jock area without constant itching, ulceration, nervous manifestations or other systemic manifestations. 2. Since August 13, 2001, the veteran's service-connected dermatophytosis and eczema have been manifested by scaling and hyperpigmentation in the jock and inner thigh areas with some itching; the disability has not been productive constant itching, extensive lesions, disfigurement, nervous or systemic manifestations; it involves less than 5 percent of the body and no exposed areas; and it has not necessitated systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for dermatophytosis and eczema of the jock area for the period from September 16, 1997, through August 12, 2001, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7813, 7806 (2002). 2. The criteria for a rating for dermatophytosis and eczema of the jock area in excess of 10 percent for the period from August 13, 2001, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7806, 7813 (2002); 67 Fed. Reg. 49,590-99 (July 31, 2002); 67 Fed. Reg. 58,448 (September 16, 2002); 67 Fed. Reg. 62,889 (October 9, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2002) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Service medical records note that the veteran was seen in October 1991 with complaints of a rash in the groin area. The impression was heat rash/jock itch. In September 1997, the veteran submitted a claim for service connection for a rash in the groin area. An October 1997 VA Persian Gulf Registry examination report notes the veteran's history of a fungal rash in the jock area since service. The examiner noted that the rash was present at the time of examination. The diagnosis was recurrent dermatophytosis of the jock area. In an August 1999 VA Form 9, Appeal to Board of Veterans' Appeals, the veteran stated that every time his skin got really dry or really sweaty, he broke out in a rash in the groin area. In a statement received by the RO in April 2001, the veteran's wife stated that she had watched the veteran suffer from a "body rash" that caused him to scratch, especially in the groin and between his legs. The report of a VA fee-basis examination performed on August 13, 2001, notes the veteran's complaints of itching and irritation of the skin on his groin and the intertriginous area between the medial thigh and the lower scrotum. The veteran reported using Cortizone-10 cream twice daily for the past two years in order to keep the rash under control. He indicated that he had not been under the care of a dermatologist. Examination of the skin was negative, except for the lower groin area and intertriginous area between the medial thigh and the lateral scrotal area. There was a mild degree of scaling of the skin that appeared to be quite dry, and there was evidence of hyperpigmentation of the skin adjacent to the groin. There was no evidence of rash formation, exudation, ulceration, crusting, or marked disfigurement of the skin. There were mild exfoliation and hyperpigmentation. The examiner stated that there was "no sign of recurrent dermatophytosis in the jock area, but this current condition of eczema of groin and intertriginous areas between medial thigh and lateral scrotal areas [was] secondary to using cortisone cream to control the dermatophytosis." The diagnoses included: residuals of dermatophytosis of the jock area; and eczema of the groin and intertriginous areas between medial though and lateral scrotal areas. A February 2003 VA fee-basis examination report notes the veteran's complaints of itching and irritation of the skin on his groin. The veteran reported that he had never seen a dermatologist for this problem. Instead, he self-treated the symptoms with an over-the-counter hydrocortisone cream, applied twice daily on a regular basis. The veteran indicated that the cream helped keep the itching in check somewhat; however, approximately 6 hours after application of the cream, the itching returned. The veteran reported the occasional formation of papules in the area of the groin, but denied pustules, vesicles, scarring, functional limitation, or time lost from work due to his service-connected skin disability. Examination of the skin revealed an area of hyperpigmentation on the inner, upper thighs adjacent to and including the inguinal fold that encompassed less than 5% of the veteran's body. There were no papules, vesicles, pustules, scarring, crusting, ulceration, or excoriations noted. There was very mild exfoliation in some areas, but this was not extensive. The examiner noted that these findings did not appear to be associated with any systemic or nervous condition. The examiner stated: It is impossible to tell by physical examination alone whether the [veteran] has dermatophytosis or eczema. The two most likely diagnoses on the list of differential diagnoses for the [veteran's] symptoms would be a dermatophytosis or an eczema. . . . It is not my opinion that there is any other previously undiagnosed skin disorder present at this time. Veterans Claims Assistance Act of 2000 During the pendency of the veteran's claim, the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In additions, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the veteran's claim. The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The record reflects that through the statement of the case, the supplemental statements of the case, the Board's December 2001 and November 2002 Remands, and letters from the RO to the veteran, in particular March 2001 and November 2002 letters, the veteran has been informed of the evidence and information necessary to substantiate his claim, the information required of him to enable the RO to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire the RO to obtain such evidence on his behalf. Therefore, the Board is satisfied that VA has complied with the notification requirements of the VCAA and the implementing regulations. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record also reflects that all available medical evidence identified by the veteran has been obtained. In addition, the veteran has been afforded an appropriate VA examination to determine the severity of his service-connected skin disorder of the jock area. Neither the veteran nor his representative has identified any outstanding evidence or information that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. In fact, when the RO contacted him by telephone in May 2003, the veteran stated that he had no additional evidence to submit in support of his claim. Therefore, the Board is also satisfied that the RO has complied with the duty to assist provisions of the VCAA and the implementing regulations. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of the veteran's appeal, the regulations pertaining to skin disorders were revised. Under the criteria in effect prior to August 30, 2002, dermatophytosis was to be rated as eczema in accordance with 38 C.F.R. Part 4, Diagnostic Code 7806. See 38 C.F.R. § 4.118 (2002). Under Diagnostic Code 7806, eczema with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area warranted a noncompensable rating; eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area warranted a 10 percent evaluation; eczema with constant exudation or itching, extensive lesions, or marked disfigurement warranted a 30 percent evaluation; and eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or which is exceptionally repugnant warranted a 50 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). Effective August 30, 2002, the rating criteria for skin disorders were revised. See 67 Fed. Reg. 49,590-99 (July 31, 2002); see also corrections at 67 Fed. Reg. 58,448 (September 16, 2002) and 67 Fed. Reg. 62,889 (October 9, 2002).). The revised version of Diagnostic Code 7813 provides that dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. [Parenthetically, the Board notes that the veteran's service- connected skin disability has not been manifested by any scarring whatsoever; dermatitis is the predominant disability. Therefore, Codes 7800, 7801, 7802, 7803, 7804 and 7805 are not for application in this case.] Under the revised version of Diagnostic Code 7806, dermatitis or eczema warrants a 60 percent evaluation if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent evaluation. Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; of requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent evaluation. Dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable evaluation. As the veteran's claim for a higher initial rating for a skin disorder of the groin was pending when the regulations pertaining to skin disorder were revised, he is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); VAOPGCPREC 3- 2000 (April 10, 2000), published at 65 Fed. Reg. 33,422 (2000). After reviewing the record, the Board concludes that a compensable rating for the veteran's dermatophytosis and eczema of the jock area is not warranted during the period from September 16, 1997, through August 12, 2001. Only the former criteria are applicable to this period of time. The evidence for this period shows no nervous or systemic manifestations of the disability. It also shows that the disability was not productive of ulceration, disfigurement or constant itching. The disability was manifested by a recurrent rash in the groin area with itching. This limited involvement of a nonexposed area does not more nearly approximate the extensive involvement required for a 10 percent rating under the former criteria. Furthermore, the Board concludes that a rating in excess of 10 percent for the veteran's service-connected dermatophytosis and eczema is not warranted under either the former or revised rating criteria for the period from August 13, 2001. With respect to the former criteria, the evidence for this period also shows no nervous or systemic manifestations of the disability and that the disability has not been productive of ulceration or disfigurement. Extensive lesions have not been found. Rather, the disability is limited to a relatively small, nonexposed area. While the veteran complained of itching during the August 2001 and February 2003 examinations, he indicated that the itching was kept "in check somewhat" with the application of hydrocortisone cream, and reported going as long as 6 hours without any itching. In sum, the evidence for this period of time clearly establishes that the disability does not more nearly approximate the criteria for a rating in excess of 10 percent than those for a 10 percent rating. With respect to the revised rating criteria, the Board notes that the medical evidence demonstrates that the disability involves no exposed area and that the total area of involvement is far less than the 20 to 40 percent of the entire body required for a higher rating. In particular, the Board notes that the 2003 examiner noted that the veteran's service-connected skin disability encompassed less than 5% of the veteran's body. In addition, the record demonstrates that the disability has not necessitated systemic therapy such as corticosteroids or other immunosuppressive drugs. The 2001 and 2003 examination reports note that the veteran was treating himself with an over-the-counter hydrocortisone cream. For all the foregoing reasons, the Board concludes that the veteran's claim must be denied. As required by Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether a higher rating is warranted for any portion of the initial evaluation period. However, as explained above, the Board is of the opinion that the disability does not warrant a compensable evaluation during the period prior to August 13, 2001, or a rating in excess of 10 percent during the period from August 13, 2001. The Board has also considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a compensable rating for the period from September 16, 1997, through August 12, 2001, and a rating in excess of 10 percent for the period from August 13, 2001, for dermatophytosis and eczema of the jock area is denied. Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.