Citation Nr: 0812901 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-11 680 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from October 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision in which the RO granted a rating of 10 percent for tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet, effective April 30, 2004 (the date of claim). The veteran filed a notice of disagreement (NOD) with the assigned rating and effective date in April 2005. In a January 2006 rating decision and statement of the case (SOC), the RO increased the rating for the veteran's skin disability to 30 percent, effective February 26, 2004 (the date that he had requested); hence, no earlier effective date claim is before the Board. In 2006The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) , in which he requested a higher, 60 percent rating for his skin disability. The RO issued a supplemental statement of the case (SSOC) in September 2007. In October 2007, the veteran submitted a statement in support of claim (VA Form 21-4138) with attached general medical information from the EmedTV web site relating to the side effects and drug interaction of the drug Lamisil. The RO forwarded this information to the Board in February 2008 without issuing another SSOC. Such would ordinarily necessitate a remand. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2007). Here, however, the evidence submitted is substantially similar to other internet-generated general medical information relating to Lamisil previously filed and specifically considered by the RO in the September 2007 SSOC. As this evidence is cumulative of evidence previously considered-and, as explained below, does not alter the disposition of the claim on appeal-a remand for RO consideration of this evidence, in the first instance, is not required. In his substantive appeal, the veteran requested a hearing before a Veterans Law Judge in Washington, D.C., but he withdrew this request in his October 2007 statement. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The evidence does not reflect, and the veteran does not contend, that his tinea pedis of the feet and onychomycosis of the hands and feet affect more than 40 percent of the entire body or exposed areas. 3. Even assuming, arguendo, that the prescription of Lamisil tablets constitutes systemic therapy under the applicable regulation, such systemic therapy has not been constant or near-constant over any 12-month period since the February 26, 2004 effective date of the award of a 30 percent rating. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.118, Diagnostic Code 7806 (2007). 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. 2007)) 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) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also is aware of the s recent decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the United States Court of Appeals for Veterans Claims (Court) found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. at 43-44. VCAA-compliant notice 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). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a September 2004 letter provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for an increased rating for tinea pedis and onychomycosis of the hands and feet, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The October 2004 RO rating decision reflects the initial adjudication of the claim after issuance of that letter. Hence, the September 2004 letter met all four of Pelegrini's content of notice requirements as well as the VCAA's timing of notice requirement. The January 2006 SOC set forth the criteria for higher ratings for the veteran's skin disability under the applicable diagnostic code (which suffices for Dingess/Hartman). Also, a November 2007 post-rating letter informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations, indicated that VA would assign a disability rating determined by applying relevant diagnostic codes and considering the impact of the disability and its symptoms on employment, and provided examples of the types of medical and lay evidence that the veteran could submit (or ask VA to obtain) that could affect how VA assigned a disability rating. The RO did not readjudicate the claim after issuance of the November 2007 letter. However, the timing of this notice is not shown to prejudice the veteran. As the Board herein denies the increased rating claim, no other disability rating or effective date is being, or is to be, assigned; thus, there is no possibility of prejudice to the veteran under the requirements of Dingess/Hartman. The Board further notes that the veteran's substantive appeal and October 2007 statement reflect that he understood that, in order to be granted a higher, 60 percent rating for his skin disability in the absence of evidence of a sufficient area being affected, he had to show that his skin disability required constant or near constant systemic therapy. As- noted in the decision below-the veteran identified the key issue on this appeal and argued that the length of time he had been prescribed the drug Lamisil met these requirements, the Board finds that any error in not providing Vazquez notice followed by readjudication of the claim was "cured by actual knowledge on the part of the claimant." See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir 2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records, VA outpatient treatment (VAOPT) records, reports of VA examinations, and medical information from the internet regarding the use of Lamisil. Also of record and considered in connection with the appeal are various written statements submitted by the veteran. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which provides for ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). 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 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2007); 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 of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509- 510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The RO assigned the 30 percent rating for the veteran's service-connected tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet under 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7899-7806 (2007), which indicates that the rated disability is one not listed in the rating schedule that is being rated, by analogy, to dermatitis or eczema, pursuant to the criteria of DC 7806. See 38 C.F.R. §§ 4.20, 4.27 (2007). Under DC 7806, a 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during a twelve-month period. The maximum 60 percent schedular rating is assigned where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a twelve-month period. Considering the pertinent evidence of record in light of the above-noted criteria, the Board finds that the criteria for the assignment of a rating in excess of 30 percent for the veteran's service-connected skin disability are not met. The evidence does not reflect, and the veteran does not contend, that his tinea pedis of the feet and onychomycosis of the hands and feet affect more than 40 percent of the entire body or exposed areas. In fact, the October 2004 VA examiner indicated that less than 5 percent of the body and of exposed areas were affected. Rather, the veteran argues that he is entitled to a 60 percent rating because he has required "near constant" systemic therapy during the relevant time period. Specifically, in his substantive appeal and October 2007 statement, the veteran wrote that he took Lamisil tablets for 180 days or 26 weeks during the course of a year, and that this constitutes near constant systemic therapy. As noted by the veteran, neither 38 C.F.R. § 4.118 nor any other regulation defines the term "near constant." The Board notes that there does not appear to be a definition of either "systemic therapy" or "near-constant" in either the applicable regulation or the supplementary information accompanying the most recent amendments to the criteria for rating disabilities of the skin. See 67 Fed. Reg. 49590-01 (July 31, 2002). In the January 2006 SOC, the RO found that the medication required for control of the veteran's skin disability warranted a 30 percent rating. Thus, the RO found that the drug prescribed for the veteran's skin disability, Lamisil, constituted systemic therapy. This is a plausible interpretation, as DC 7806 gives examples of systemic therapy, i.e., "such as corticosteroids or other immunosuppressive drugs," but does not limit the definition of systemic therapy to these examples. The internet- generated material submitted by the veteran prior to the September 2007 SSOC, from the Medicinenet and Lamisil web sites, reflect that Lamisil is a brand name for the generic drug terbafine, which is an oral antifungal agent that can be considered systemic therapy. The VAOPT notes reflect that the veteran was prescribed Lamisil tablets and the October 2004 VA examination report characterizes Lamisil as an "oral immunosuppressive," and characterized creams and ointments used by the veteran as "topical immunosuppressives." Even assuming, arguendo, that the prescription of Lamisil tablets reflects that the veteran's skin disability required systemic therapy, the criteria for a 60 percent rating under DC 7806 are not met because this systemic therapy has not been constant or near constant during any 12-month period since the February 26, 2004 effective date of the award of a 30 percent rating. There are multiple references in the VAOPT notes to the duration of various prescriptions of Lamisil. A February 2004 VAOPT note indicates a trial of Lamisil and that the veteran would return for follow-up in three months. A June 2004 VAOPT note indicated that the veteran's onychomycosis was being treated with Lamisil and that he would return to the clinic in six months. A VA drug profile that was run in October 2004 indicated that there were no prescriptions on file and no pending orders for the veteran, and that his next clinic appointment was in December 2004. The October 2004 VA examiner noted that the veteran had taken oral immunosuppressives for 6 weeks or more during the previous twelve months, whereas he had taken topical immunosuppressives constantly or near constantly. A December 2004 VAOPT note indicates that the veteran had finished the three-month Lamisil trial, but continued to have onychomycosis of the hands and feet and that the course of Lamisil would be repeated for ninety days, with liver enzymes being checked in eight weeks. A February 2007 VAOPT note reflects that the veteran's chronic onychomycosis had been treated with Lamisil for three months (twelve weeks) two years previously, but it did not help. The veteran estimated that he had taken Lamisil for about 180 days during the course of one year. Given the above evidence, the Board finds that this is a reasonable estimate. However, 180 days is less than half of one year. Constant means "continually occurring or recurring: persistent." See Webster's II, New College Dictionary, at 240 (2001). Near means "nearly: almost." Id. at 730. Thus, the Board finds that, for systemic therapy to be near-constant during a 12-month period, it would have to be used for significantly more than half of a year. This accords with the characterization of the October 2004 VA examiner, who indicated that the veteran's use of oral immunosuppressives was, unlike his use of topical treatments, not constant or near constant. As the evidence, to include the veteran's own statements, reflects that he was not prescribed, and did not use, Lamisil for more than half of any one year period, the Board finds that the veteran's skin disability did not require constant or near-constant systemic therapy such as corticosteroids of other immunosuppressive drugs during any 12-month period, as required for a 60 percent rating. In his October 2007 statement and elsewhere, the veteran also argued that a higher rating is warranted because, during the time he took Lamisil, he was subjected to liver tests due to the possibility of having side effects. The RO addressed this argument in the September 2007 SSOC, and the internet- generated medical information submitted by the veteran does indicate the possibility of some side effects from Lamisil, including liver impairment. However, the VAOPT records do not reflect that the veteran suffered any side effects from Lamisil, and the October 2004 VA examination report indicates that the veteran did not experience side effects from any treatments. Thus, as there is no evidence of additional disability caused by medication taken for the veteran's skin disability, the possibility of such side effects does not provide a basis for a higher rating. The Board has considered the applicability of alternative diagnostic codes for evaluating the veteran's skin disability, but finds that no higher rating is assignable. The October 2004 VA examination report indicated that there was no urticaria, primary cutaneous vasculitis, erythema multiforme, systemic symptoms, benign or malignant neoplasms of the skin, acne, or chloracne. Therefore the diagnostic codes applicable to these or other skin disabilities are not for application in this case. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, there is no showing that the veteran's skin disability reflects so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (as cited in the January 2006 SOC). The disability has not objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned rating), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of any of the factors noted above, the Board finds that the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that the claim for a rating in excess of 30 percent for tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not for application in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 30 percent for tinea pedis of bilateral feet and onychomycosis of bilateral hands and feet is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs