Citation Nr: 0505928 Decision Date: 03/03/05 Archive Date: 03/15/05 DOCKET NO. 03-17 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial disability rating in excess of ten percent for tinea cruris. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sonia Shah, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision the RO granted service connection for tinea cruris, and assigned a noncompensable rating effective in September 1999. The veteran disagreed with the evaluation assigned to that condition. In a January 2002 rating decision, the RO awarded an increased evaluation of 10 percent for the veteran's service connected tinea cruris, effective in September 1999. The veteran continued to voice his disagreement with the percentage assigned, and perfected an appeal for this issue. For good cause shown, the veteran's motion for advancement on the docket has been granted. See 38 USCA 7107(a); 38 CFR 20.900(c) (2003). FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO and the duty to notify has been satisfied. 2. The veteran's tinea cruris is manifested by excoriated skin around the upper thighs, groin and rectal areas. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for tinea cruris are not met. 38 U.S.C.A. § 1155, 5107 (2004); 38 C.F.R. § 4.1, 4.2, 4.118, Diagnostic Code 7822 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Development of the Claim 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) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). The Court also held, however, that providing the VCAA notice to the claimant after the initial decision could satisfy the requirements of the VCAA if the timing of the notice was not prejudicial to the claimant. Pelegrini, 18 Vet. App. at 121. Here, although pre-adjudication was not provided, the RO notified the veteran of the information and evidence needed to substantiate his claim for an increased rating for his skin condition in a September 2002 letter. That letter also informed him of the information and evidence that he was required to submit, the evidence that the RO would obtain on his behalf, and the need for the veteran to advise VA of or submit any additional relevant information or evidence. The veteran responded to the September 2002 notice by submitting photos of his affected areas. The veteran and his representative were also provided with a copy of the appealed rating decision, a statement of the case, and supplemental statements of the case. These documents provided them with notice of the law and governing regulations, as well as the reasons for the determinations made regarding his claim. In these documents the RO also informed them of the cumulative evidence previously provided to VA or obtained by VA on the veteran's behalf. The Board finds that all of these documents informed the veteran of the evidence he was responsible for submitting, and what evidence VA would obtain in order to substantiate his claim. Quartuccio v. Principi, 16 Vet. App. at 187. In general, the statute and regulation also provide that VA will also make reasonable efforts to help the veteran obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Here, the evidence associated with the claim includes the veteran's service medical records, VA and private treatment records, and VA examination reports. The veteran has not alluded to the existence of any other evidence that is relevant to his claim. The Board concludes that all relevant data has been obtained for determining the merits of his claim and that no reasonable possibility exists that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); 38 C.F.R. § 3.159(c) (2003). Factual Background A July 2001 rating decision established service connection for tinea cruris, at a noncompensable rate. The veteran filed a notice of disagreement regarding the evaluation assigned in August 2001. The RO granted an increase in the disability rating in January 2002 and assigned a 10 percent rating under Diagnostic Code 7822. The veteran again appealed the assigned rating. During a July 2001 VA medical examination the veteran stated that he has flare-ups and outbreaks about three times per year, when the rash becomes excoriated, very pruritic, and sometimes infected. During these times, he is placed on antibiotics, and he always uses clotrimazole, nystatin powder, and hydrocortisone to treat his tinea cruris. He stated that these medications seem to keep the condition from becoming severe between flare-ups, but that the rash has never gone away. Physical examination revealed no ulceration, exfoliation, or crusting. There were no open areas and no infection was noted. The rash was around his upper inner thighs and scrotum. The affected area was light brown in color, which was darker than the surrounding areas. The examiner diagnosed tinea cruris. The veteran was treated at a VA medical facility from August 1999 to October 2001. The veteran was seen in May, September, and October 2001 with complaints of itching in the groin area due to tinea cruris. Physical examination in September 2001 noted extensive raised, reddened, uneven margins which were nontender. There were no vesicles or plaques. Skin was not warm and there was no infection. A private medical report from May 2002 concerning other conditions found no skin rash or eczema. In September 2002 the veteran submitted photos of his skin disorder, which show the discoloration of the veteran's skin around the upper thighs. The veteran indicated the pictures do not show the lesions on his skin. The veteran's treatment records from Dr. C. P. from January 2001 to October 2002 do not reveal treatment for tinea cruris. VA treatment records from September 2001 to August 2002 were obtained. An August 2002 entry revealed that the veteran was a new patient to that physician. Medications were reported as Prednisone for joint problems, but he had finished the medication. He also reportedly took augmentin before dental treatment and for a skin rash. Physical examination of the groin area revealed some linear open superficial skin scratches with mild erythema, but no pus or any acute inflammation. A medication list dating for the period from July 1998 to July 2002 included ketoconazole cream, hydrocortisone cream, and eucerin cream. A March 2003 letter from Dr. S. E. K. indicates that the veteran has had chronic tinea cruris dating back to his military service. Dr. K. revealed that the veteran has chronic itching, burning, and pain related to this condition and is required to be on long term medical therapy. No evidence of treatment by Dr. K. was associated with the claims file. On the veteran's May 2003 substantive appeal he indicated that he was placed on augmentin and amoxicillin by the VA medical center and he suffers from constant itching, bleeding and cracking. He reported that he has trouble sleeping. He indicated that his feet shed skin, and his back and groin are itchy and scaly. The veteran was afforded a VA medical examination in July 2003. The veteran reported that he has suffered from flare- ups of tinea cruris since he left service. When there are flare-ups, the affected areas drain liquid. During those times the veteran reported using absorbent pads, both in his underwear and between his legs in order to collect the drainage and stop it from showing through his pants. He reported using nystatin cream and baby powder for his skin disorder. Physical examination revealed that the veteran had several scars from prior surgeries on different areas of his body, which were well healed. Examination around the groin area, scrotum and medially on both legs revealed that the skin was excoriated, erythema was present, the skin was slightly raised, and there were scattered areas where scabs could be observed from healing sores. The rectal area all the way between the buttocks up to the lower sacrum was excoriated, erythematous, and raised. At that time the area between the buttocks was significantly inflamed with a slight amount of clear drainage. The veteran was not wearing an absorbent pad at the time of the examination and there was slight clear to yellow drainage on his underclothes. The examiner noted the veteran's tinea cruris was not in good control. Attached photographs revealed a darker skin in the inner thigh area. Relevant Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2003). Separate diagnostic codes identify the various disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2003). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the veteran's major depression. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. The Board notes that subsequent to the initiation of the veteran's claim, the regulations pertaining to the evaluation of skin disorders were revised effective August 30, 2002. Schedule for Rating Disabilities; The Skin, 67 Fed. Reg. 49,590 (July 31, 2002) (codified at 38 C.F.R. § 4.118 (2004)). VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3- 00. Effective prior to August 30, 2002, 38 C.F.R. § 4.118, tinea cruris was rated analogous to eczema pursuant to Diagnostic Code 7806. 38 C.F.R. § 4.118 (2002). Diagnostic Code 7806 provided that slight, if any, exfoliation, exudation (oozing) or itching, if on a nonexposed surface or small area will be assigned a zero percent rating. A 10 percent rating was assigned for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation requires constant exudation or itching, extensive lesions or marked disfigurement. A 50 percent evaluation required ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Under the criteria effective from August 30, 2002, tinea cruris is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7813. Under Diagnostic Code 7813 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) will be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 CFR § 4.118. Here, the predominant disability is tinea cruris of the groin region, falling within the criteria for Diagnostic Code 7806. The revised criteria of Diagnostic Code 7806, provides that a 10 percent rating is warranted for dermatitis or eczema that is 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12- month period. A 30 percent rating is warranted for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. Analysis After consideration of the evidence, the Board finds that an increased rating is not warranted. Specifically, the evidence does not reveal constant exudation or itching, extensive lesions, or marked disfigurement to warrant the next higher rating of 30 percent under the old criteria. Although the veteran complained of constant itching in his written statements, the medical evidence does not support a conclusion that the itching is constant so as to warrant the 30 percent evaluation. Both the criteria for a 10 percent and a 30 percent rating require itching. While the veteran clearly experiences itching, the objective evidence fails to show that such itching is constant. On his July 2001 examination, he noted he has pruritis during flare-ups, which occurs about 3 times per year. At that examination, there was no ulceration, exfoliation or crusting. Outpatient treatment records for a period from August 1999 to October 2001 noted only three times when the veteran complained of itching. A May 2003 private doctor's statement noted chronic itching, but did not indicate that such itching was constant. The veteran did not mention itching during the July 2003 VA examination, although oozing was noted. However, while the veteran does experience oozing, again, the evidence does not show that this oozing is constant in nature. Under the revised criteria the veteran is not entitled to an evaluation in excess of 10 percent because the evidence shows only that the groin and inner thigh area is affected, not 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas. Moreover, the evidence does not establish that systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12- month period. Although the veteran reported taking Prednisone, the VA treatment records noted this medication was for joint problems, not for his skin condition. In any event, the evidence does not reveal that the veteran has taken systemic drugs (versus topical medication) for a total duration of six weeks or more. Likewise, the veteran has reported taking antibiotics for his skin condition, but even if this medication does fall within the systemic therapy category, none of the medical evidence shows such treatment has been required for a total period of 6 weeks. Finally, although the veteran contends that other areas of his skin are involved, none of the objective medical evidence reveals a tinea rash anywhere other than in the groin/inner thigh area. While the veteran did complain of itching on the lower extremities in October 2001, no noticeable rash was found. In summary, the Board finds that the veteran's symptoms more nearly approximate the criteria for the 10 rating, and that the preponderance of the evidence is against an increased rating for tinea cruris. The Board further finds that the 10 percent evaluation is the most disabling this condition has been during the course of the claim. See Fenderson, supra. In reaching the conclusions above the Board has considered the applicability of 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 an initial disability rating in excess of 10 percent for tinea cruris is denied. ____________________________________________ KATHY A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs