Citation Nr: 0636093 Decision Date: 11/20/06 Archive Date: 11/28/06 DOCKET NO. 00-16 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for a fungus infection, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active military service from July 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating determination of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeared at a hearing before a local hearing officer at the RO in May 2000. In July 2004, the RO denied entitlement to a total rating based on individual unemployability. There is no indication that the veteran submitted a notice of disagreement with that decision. On subsequent examinations and treatment, he has, however, stated that his service connected skin disease prevents gainful employment. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2006) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the veteran has satisfied each of these requirements. His inferred claim for a total rating based on individual unemployability is referred to the RO for adjudication. Subsequent to the last supplemental statement of the case in May 2006, the Huntington, West Virginia RO received evidence that was then forwarded to the Board. The veteran has not waived initial consideration of this evidence by the RO, nor has a supplemental statement of the case been issued. Much of this evidence, however, was previously considered by an agency of original jurisdiction. Because this decision is granting the highest schedular rating for the veteran's disability, and an extraschedular rating, as discussed below, is precluded, there is no prejudice to the veteran in the Board's consideration of this evidence in the first instance. 38 C.F.R. § 20.1304 (2006). This matter was previously remanded by the Board in November 2004 and February 2006. FINDINGS OF FACT The veteran's skin disorder requires near continuous treatment with systemic therapy. CONCLUSION OF LAW The criteria for a 60 percent evaluation for a fungus infection have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.118, Diagnostic Code 7806 (2001 & 2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The December 2004 and August 2005 VCAA letters informed the veteran of the information and evidence necessary to substantiate the claim. The VCAA letters also told the veteran what types of evidence VA would undertake to obtain and what evidence the veteran was responsible for obtaining. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The August 2005 letter notified the veteran of the need to submit any pertinent medical or service medical records in his possession. The United States Court of Appeals for Veterans Claims (Court) has also held, that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here some of the notice was provided after the initial denial, but the deficiency in the timing of the notice was remedied by readjudication of the claim after provision of the notice. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The veteran was provided with notice of what type of information and evidence was needed to substantiate his claim, including that necessary to establish a rating. He was provided with notice of the type of evidence necessary to establish an effective date for the disability in March 2006. Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the new law and regulation. All available service medical, VA, and private treatment records have been obtained. No other relevant records have been identified. The veteran was also afforded necessary examinations. The veteran's representative has argued that the most recent examination did not contain all the finding asked for in the Board's last remand. Stegall v. West, 11 Vet App 268 (1998). Because the Board is granting the highest schedular rating, and the missing findings pertained to the schedular criteria, any deficiency is not prejudicial. Skin Disorder Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2005). The percentage ratings contained in the 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2006). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that the regulations governing skin disorders changed during the course of this appeal. 38 C.F.R. § 4.118 (2006) (effective August 30, 2002). A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). When a new statute is enacted or a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). VA's General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3-2000 (2000); 65 Fed. Reg. 33422(2000) Under the old criteria, Diagnostic Code 7806 provided that a 10 percent rating contemplated a skin disorder with exfoliation, exudation or itching, involving an exposed surface or extensive area. The next higher rating of 30 percent contemplated a skin disorder with exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating contemplated a skin disorder with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or being exceptionally repugnant. Under the new rating criteria, 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. In August 1999, the veteran requested an increased evaluation for his skin disorder. In September 1999, the veteran was afforded a VA examination. Physical examination performed at that time revealed bilateral lower extremity hyperpigmentary changes. The right lower extremity was worse than the left. A brownish hue was noted over the right anterior calf portion consistent with venous stasis and his previous cellulitis infection. The veteran was noted to have patches of hyperpigmentary changes involving his left lower extremity where he appeared to have exfoliated areas of the skin secondary to pruritus. There was no evidence of a fungal rash involving the hands or ears. There was also no evidence of a fungal foot infection. The veteran had no fungal nails or onychomycosis. He disclosed pictures of his hospitalization where he had multiple excoriations over his lower extremities and also cellulitic changes. Diagnoses of recent cellulitis times two requiring hospitalizations and intravenous antibiotics, now on chronic oral cephalosporin therapy; fungal infection involving the lower extremities; and hyperpigmentary changes likely secondary to venous stasis or recent cellulitis, were rendered. The examiner indicated that although the veteran's hospitalization stays were based on cellulitis, it was likely that the veteran's fungal infection involving his lower extremities was predisposed from scratching excoriation and a vehicle to a certain extent for bacterial cellulitis. At the time of his May 2000 hearing, the veteran testified that he had constant itching to the point that it interfered with his sleep. He also testified as to having open sores oozing down his legs. He noted that this happened every few weeks. The veteran's wife testified that she changed the sheets twice a week and that she noticed flakes all over the veteran's side of the sheets. She furthered reported that there were a lot of flakes and oozing in the veteran's pants. The veteran indicated that it was his belief that his skin disorder was exceptionally repugnant. He noted that other people would comment about the condition of his legs. He further stated that a lady at the Clinic where he received treatment requested that he keep his legs covered. The veteran indicated that his condition had made him depressed. He noted that it had really affected him as a result of the way people looked at his legs. The veteran testified that he was on long term disability as a result of his cellulitis. In a December 2001 statement in support of claim, the veteran's wife noted the adverse effect the veteran's skin disorder had on him. This included people staring at his legs and asking what kind of skin disorder he had. She also reported the constant itching and burning that the veteran faced. She noted that the veteran would have serious flare- ups where his legs were covered by sores. Treatment records obtained in conjunction with the veteran's claim reveal consistent use of creams and other medications with regard to his skin condition, including Keflex, Zyrtec, Mycolog Cream, Bactroban Cream, and Augmentin. At the time of his May 2003 VA examination, the veteran reported having multiple fungal infections throughout the years. His medications were noted to be Bactroban, Keflex, Vanicream, and ternbinafine cream. He had tried Lamisil by mouth. Physical examination performed at that time revealed seborrheic dermatitis around the ears and scalp area. He also had excoriations along his forearms. Excoriations and dermatitis were also present on the left neck and back. The veteran had distal toenail thickening and onychomycosis. He had no cellulitis and there was no tinea actively on his feet other than onychomycosis. Diagnoses of onychomycosis; excoriations from dermatitis secondary to dermatitis; and seborrheic dermatitis, were rendered. In an August 2003 letter, the veteran's private physician, A. Moss, M.D., indicated that the veteran came to him in 1997 with an acute fungal infection of the left leg. He diagnosed cellulitis caused by scratching and getting the infection into his blood stream. He noted that he treated the veteran with an aggressive course of antibiotics and placed him on the pain reliever Daypro. He stated that the veteran had been treated for his fungus with little success. He reported that he had referred the veteran to another physician who attempted to treat the veteran with Lamisil and other medications, to no avail. He indicated that he saw the veteran in June 1999 with a high fever, severe swelling and numbness of the right leg. Dr. Moss stated that he feared that the veteran would lose his leg. He again noted that the veteran was hospitalized in September 1999 for the same condition. Dr. Moss indicated that the veteran's health went from good in 1997 to the condition he was in now, which was 100 percent disabled due to health problems. He noted that the veteran suffered greatly from itching on his legs, feet, toes, hands, arms, neck, arms, and stomach, and that he was on a regular dose of antibiotics to avoid recurrence of his cellulitis. Dr. Moss stated that it was his belief that the veteran's health problems were all brought on from complications and treatment of his service-connected fungus and that he was therefore entitled to a 100 disability as he was totally unemployable. At the time of a May 2005 VA examination, the veteran indicated that he had a fungal infection all over. The veteran stated that he currently used Elidel, Vanicream and Lamisil ointment daily topically. None of the skin preparations produced a beneficial response. He denied any other present skin treatments, including corticosteroids, immunosuppressive drugs, or light therapy. Local symptoms included pruritus but no pain. The veteran was in average to poor general medical health. He suffered from diabetes, asthma, and morbid obesity, among other conditions. The veteran was noted to not be currently employed. The veteran felt that his skin condition, namely of the lower extremities, affected his usual occupation, his activities of daily living, and his recreational activities. He noted that the lower extremities were painful as a result of skin disease and that he could not walk. He also stated that his social life was adversely affected in that he was embarrassed by the appearance of his legs. Physical examination revealed multiple erythematous patches with mild crust, scarring, and excoriation, on the upper extremities and abdomen. There were multiple areas of ulcerations, erythema, scale, and excoriation along the lower legs. The skin was thickened with definite underlying edema. The groin exhibited diffuse erythema and scale. Diagnoses of lichen simplex chronicus affecting 10 percent of the legs and 0 percent of the exposed body and 3.6 percent of the total body involved; tinea corporis affecting 10 percent of the abdomen and 5 percent of the upper extremities with 0 percent of exposed body and approximately 2 percent of the total body; and tinea cruris affecting 20 percent of the legs and 0 percent of the exposed area and 7.1 percent of the total body, were rendered. In an October 2005 addendum report prepared by another VA examiner, the examiner stated that it was less likely as not that the veteran's skin condition precluded him from holding gainful employment. The examiner indicated that although she had not seen the veteran, upon reviewing the file, his gait was found to be normal at the time of a September 2005 outpatient visit. The examiner stated that the veteran's inability to walk as necessary was probably more dependent upon his weight than his skin condition. The examiner noted that the veteran weighed 372 lbs. The veteran was afforded an additional VA examination in March 2006. The examiner noted that the veteran's claims file was available and extensively reviewed. The examiner observed that the veteran had two episodes of cellulitis in 1999, which required hospitalization. The veteran indicated that after the second episode he was placed on disability from his job, secondary to the inability to perform his duties at work. His duties included being able to walk and doing heavy lifting. The veteran stated that due to the chronic pain and swelling from the rash on his legs, he was unable to perform his work duties. The veteran was noted to have been seen in the hospital for his rash in July 2005 when he was found to have an extreme bright and pruritic rash from his waist down and he was given antibiotics. The examiner indicated that at the time of that visit, the veteran was noted to have chronic intertrigo lichen simplex chronicus; generalized pruritus; and a chronic fungal infection. The examiner observed that over the years, the veteran had used various ointments and creams and systemic therapy for treatment of his skin condition. The treatment included pimecrolimus ointment, Bactroban ointment, clobetasol gel, Castellani's paint, Vanicream, triamcinolone, mystatin cream, clotrimazole cream, mupirocin cream, Benadryl orally as needed, and various anti-fungal pills such as Diflucan, Mycolog, and gatifloxacin. The veteran stated that his rash was extremely itchy mainly on his feet, his lower extremities, and his abdomen. The veteran had oozing from his umbilicus. He reported periodic fevers but none recently. His rash was very painful. He noted having weight gain. The examiner commented that the veteran was disabled. Socially, he was withdrawn and embarrassed and would get very upset, nervous, and anxious in public, when his rash was active. The veteran had recently been placed on Prozac because of this. While the veteran reported that several VA examiners had indicated that his rash was repugnant, there were no such findings of record. Physical examination revealed that the veteran was alert, oriented, and anxious but in no acute distress. There were patches of lichen simplex chronicus along his upper extremities. The abdomen showed some erythematous papules and nodules as well as erythema and scaling in the periumbilical region. There was also some purulent fluid draining from his umbilicus. His genitalia showed chronic lichenification and scaling in the inguinal fold regions. His lower extremities showed some pretibial hyperpigmentation, some scattered erythematous nodules, and scaling. There was 2+ pitting edema. There was also tinea pedis noted along the plantar surface of the feet, the heels, the forefoot, and the interdigitary regions. There was some involvement of the toenails. Diagnoses of tinea corporis, tinea cruris, and tinea pedis with onychomycosis; lichen simplex chronicus; chronic venous stasis; recurrent cellulitis; and morbid obesity were rendered. The examiner noted that the veteran reported that his condition had worsened over the years to the point where he was developing recurrent cellulitis and being medically disabled, secondary to not being able to perform his previous job duties and developing depression and anxiety related to his symptoms and his appearance, particularly when out in public. The examiner stated that currently he estimated the veteran's affected exposed skin as 0 percent and his entire body as 10 percent. The veteran stated that please realize that his appearance changes depended on flare-ups. For example, the veteran was seen in Urgent Care back in July 2005 and the physical examination at that time showed much more extensive rash than the veteran had at the time of the current examination. The condition fluctuated at any given time on this veteran. The examiner stated that the veteran's skin disorder was not exceptionally repugnant; however, from previous physical examination findings, it had been. The examiner indicated that the veteran's skin condition fluctuated. As to any contraindications to steroids, the examiner noted that Dr. Moss reported that the veteran was unable to take steroids secondary to his diabetes. The examiner indicated that steroids in general were not completely contraindicated in someone with diabetes. He noted that certainly for optimal glycemic control chronic steroid use was less favorable; however, the veteran had intense itching and a rash that was helped by topical steroids that provided less systemic effects than oral steroids. Treatment records obtained subsequent to the examination reveal that at the time of a June 2005 outpatient visit, the veteran was noted to have redness, burning, and itching in his groin and under his arms. He remembered becoming hot and sweaty the day before. At the time of a July 4, 2005, visit, the veteran stated that his fungus rash was back. The veteran was noted to have the rash in his groin area, axilla, and around his neck and eyes. The veteran reported having loose stools from his antibiotics. He stated that he could not stand the itching anymore. He was noted to have been given Diflucan, Gatifloxain, and Mycolog. With regard to the old rating criteria, the Board notes that for a 50 percent rating there must be ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or it must be exceptionally repugnant. There has been demonstration of ulceration only at the time of the May 2005 VA examination. Extensive crusting has not been found. While the veteran has been found to have exfoliation there have been no findings of extensive exfoliation at the time of any VA examination. The most recent examination contained findings that would justify a 50 percent evaluation under the old criteria. The veteran was noted to have nervous manifestations and to have been prescribed Prozac for these manifestations. The veteran and his wife have both reported that his skin disorder is repugnant and the most recent examiner found that during periods of exacerbation the skin condition had been exceptionally repugnant. VA is required to rate skin diseases on the basis of manifestations during their active periods. See Ardison v. Brown, 6 Vet. App. 405 (1994) (holding VA had a duty to afford veteran a skin examination when the skin disease was active). As to the new criteria, the evidence shows that at its most extensive, skin diseases covered 40 percent of the entire body and less than 14 percent of exposed areas. Because he has never been shown to have involvement of more than 40 percent of the entire body or of exposed areas, he does not meet the criteria for a 60 percent evaluation on the basis of the percentage of body involvement. However, as noted above, one of the criteria listed for a 60 percent evaluation is the requirement for nearly constant systemic therapy in the past year. That finding alone, without meeting any other criteria listed, would warrant a 60 percent disability evaluation. The most recent examiner essentially found that while the veteran was not using systemic corticosteroids, such therapy was recommended as being necessary for control of his condition. As such, the criteria for a 60 percent disability evaluation have been met. That is the highest schedular rating for the veteran's skin condition. The rating schedule provides a higher rating for disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2006). The veteran's disability has never been found to involve the head, face or neck. Extraschedular Consideration Turning to the question of an extraschedular rating, it is provided under 38 C.F.R. § 3.321(a) that the provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The veteran was hospitalized for treatment of cellulitis on two occasions in 1999 and that he was seen at an urgent care facility in July 2005; however, the veteran's skin disorder has not required hospitalization since 1999. Need for frequent hospitalization has not been demonstrated. As to whether the veteran's skin disorder markedly interferes with his employment, the veteran has not worked at any time during this appeal. Accordingly, there is not marked interference with any current employment. In view of these findings and in the absence of evidence, the Board concludes that the schedular criteria adequately contemplate the nature and severity of the veteran's currently service-connected fungus infection of the left hand, feet, thighs, toes, and ears, and that the record does not suggest, based upon these findings documented within the clinical reports, that the veteran has an "exceptional or unusual" disability such to require referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service. ORDER A 60 percent disability evaluation for a fungus infection is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs