Citation Nr: 1231824	
Decision Date: 09/14/12    Archive Date: 09/19/12

DOCKET NO.  04-19 251	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable evaluation for the service-connected tinea pedis, tinea corporis and tinea cruris, prior to May 30, 2012; and to an evaluation in excess of 10 percent, since May 30, 2012.  


REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney at Law


ATTORNEY FOR THE BOARD

A. Nigam, Counsel



INTRODUCTION

The Veteran served on active duty from March 1983 to September 1999, with prior unverified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, inter alia, granted service connection for tinea pedis, tinea corporis and tinea cruris and assigned a noncompensable evaluation from October 1, 1999.  

In August 2007, the Board remanded the matter to the RO via the Appeals Management Center (AMC), in Washington, DC for additional development of the record.  

In December 2008, the Board promulgated a decision that denied an initial compensable evaluation for the service-connected tinea pedis, tinea corporis and tinea cruris.  The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2009, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating a portion of the Board's decision, and remanding the claim to the Board for further proceedings consistent with the JMPR.  

This case was again the subject of a Board remand in November 2009 and March 2011.  In July 2012 the RO granted an increased rating to 10 percent for the service-connected tinea pedis, tinea corporis and tinea cruris, effective May 30, 2012.  Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet.App.35 (1993).  The Veteran's attorney has argued that the record shows the Veteran is entitled to a 30 percent rating, at least, effective from August 30, 2002.  Therefore, the claims for a compensable evaluation prior to May 30, 2012 and in excess of 10 percent since May 30, 2012 remain on appeal.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  

During the pendency of his appeal, the Veteran has changed his representation, and was at one time represented by the American Legion and by a private attorney.  In March 2010, he executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, and appointed the accredited private attorney, listed above, as his representative.  

As a final matter, in July 2012 the Veteran's attorney submitted a statement and an accompanying VA treatment record directly for the Board's consideration, but failed to supply a waiver of his right to have this evidence initially considered by the RO.  Despite this, the Board finds that that the evidence is duplicative of evidence previously received and that no waiver is needed to the extent indicated in this case.  See 38 C.F.R. §§ 20.800; 20.1304.  


FINDINGS OF FACT

1. For the entire period of the appeal, the Veteran has competently and credibly reported the manifestations of his skin symptomatology, including severe itching in his feet, hands, groin and upper thigh areas that has been treated with various oral azole antifungal medications.  

2. Prior to August 30, 2002, the service-connected tinea pedis, tinea corporis and tinea cruris had been productive of a disability picture that more nearly approximated that of exfoliation, exudation or itching, if involving an exposed surface or extensive area.  

3. Since August 30, 2002, the service-connected tinea pedis, tinea corporis and tinea cruris has been productive of a disability picture that more nearly approximates that which requires 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 twelve-month period.  


CONCLUSIONS OF LAW

1. Prior to August 30, 2002, the criteria for the assignment of an initial evaluation of 10 percent for the service-connected tinea pedis, tinea corporis and tinea cruris had been approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118 including Diagnostic Codes (DCs) 7806, 7813 (effective prior to August 30, 2002).  

2. Since August 30, 2002, the criteria for the assignment of an evaluation of 30 percent for the service-connected tinea pedis, tinea corporis and tinea cruris have been approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118 including DCs 7806, 7813 (effective as of August 30, 2002).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Assist and Notify

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete claims.  

The Veteran was notified in August 2001, October 2007, February 2010, April 2010, May 2010, July 2010 and May 2011 letters as to the information and evidence needed to substantiate a claim for an increased disability rating and of his and VA's duties for gathering evidence.  The October 2007 letter also advised him of how VA assigns disability ratings and effective dates in compliance with the holding of Dingess v. Nicholson, 19 Vet.App. 473 (2006).  A March 2004 Statement of the Case (SOC) and an April 2008 Supplemental SOC (SSOC) advised him of the specific disability rating criteria pertinent to his increased rating claim.  See Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008).  However, the Court held in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009) that VCAA notice in a claim for increased rating need not be "veteran specific" or include reference to impact on daily life or rating criteria.  He has received legally sufficient notice.  

The October 2007 letter was provided to the Veteran after the initial adjudication of his claims and thus represents a "timing error."  See Pelegrini v. Principi, 18 Vet.App. 112 (2004).  However, the claim was re-adjudicated in a July 2012 SSOC and timing errors can be effectively "cured" by such subsequent readjudication.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006).  

As noted above, this claim was remanded in August 2007, November 2009 and March 2011.  In August 2007, the Board noted that the criteria for rating skin disorders were revised, effective August 30, 2002, and directed the RO/AMC to provide the Veteran with notice pursuant to Dingess, 19 Vet.App. 473, to obtain any outstanding treatment records, and to schedule a VA examination to determine the nature and severity of his tinea, pursuant to Massey v. Brown, 7 Vet.App. 204 (1994) (holding that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria).  

In November 2009, the Board directed the RO/AMC to obtain any outstanding treatment records, and to afford him an additional VA skin disorders examination, pursuant to Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (holding that VA is obligated to evaluate a disability while in an active condition in order to fulfill the duty to assist).  

In March 2011, the Board directed the RO/AMC to obtain any outstanding treatment records, and to afford him another VA skin disorders examination due to the inadequacy of a previous examination, pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  

Review of the record indicates that multiple attempts were made to obtain outstanding treatment records and associate them with the claims file.  Moreover, the Veteran has been afforded multiple VA examinations, at times referred to as "Disability Benefits Questionnaire" (DBQ) in the record, in September 2002, March 2008, September 2010 and May 2012, to evaluate his skin disability.  Hence, the RO/AMC substantially completed the remand directives.  See Dyment v. West, 13 Vet.App. 141, 146-47 (1999).  The case has again been returned to the Board for appellate review.  

Additionally, the record indicates that the Veteran may have been in receipt of Social Security Administration (SSA) benefits.  VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  VA's duty to assist includes the responsibility to obtain any "relevant" records from the SSA.  38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2).  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. § 3.159(c)(2).  The Board notes that two attempts were made to obtain SSA records in February 2010 and April 2010; however, the RO/AMC has determined through a formal finding that they are unavailable.  

VA has a duty to ensure that its examinations or opinions are adequate.  Barr v. Nicholson, 21 Vet.App. 303, 312 (2007).  The May 2012 DBQ skin examination report reflects a review of the claims file, and interview with and examination of, the Veteran.  This examination is adequate for the claim herein decided, as it includes information that addresses the pertinent rating criteria, and contains explanation for the clinical findings.  The claims file does not reflect, and the Veteran has not contended, that his skin disability has measurably worsened since his last examination.  See Palczewski v. Nicholson, 21 Vet.App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet.App. 400, 403 (1997).  Thus, the duty to assist has been met.  38 C.F.R. § 3.655.  

The applicable duties to notify and assist have been satisfied.  There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claim.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  

Additionally, all the evidence in the claims file has been thoroughly reviewed.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the claimant or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but only such evidence as is relevant must be discussed).  The analyses in this decision focus on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal.  See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  

The Merits of the Increased Rating Claim

General Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2011).  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 the residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011).  Separate diagnostic codes identify the various disabilities.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2011).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991).  

Where a disease consists of active and inactive stages during which the condition improves, the VA must provide for the conduct of an adequate examination during the active stage of a disease.  Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994).  

Where entitlement to compensation has already been established and an increase in the disability 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).  However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  See Fenderson v. West, 12 Vet.App. 119, 126 (1999).  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 assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  See Butts v. Brown, 5 Vet. App. 532 (1993).  

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 (2011).  

A veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a veteran's claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claims.  See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet.App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  

Analysis

Prior to August 30, 2002

Since the initial grant of service connection, the Veteran's skin disability had been assigned a noncompensable rating, effective October 1, 1999.  Prior to August 30, 2002, he had asserted that his skin disability, manifested by tinea pedis, tinea corporis and tinea cruris is more severe than contemplated by a noncompensable rating.  

The regulations for the evaluation of skin disabilities were revised, effective on August 30, 2002.  67 Fed.Reg. 49,590 (July 31, 2002).  When regulations are changed, as in the instant case, during the course of the Veteran's claim, the criteria that are to advantage the Veteran should be applied.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000).  However, the Veteran is not entitled to consideration of the revised regulations prior to their established effective date.  Green v. Brown, 10 Vet.App. 111, 116-VA Form 119, Report of Contact, dated in (1997); see also 38 U.S.C.A. § 5110(g).  VA must apply the revised rating criteria beginning on the effective date of such revisions, but not before, i.e., without retroactive application.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  

Under the old version of DC 7813, dermatophytosis is to be rated as scars, disfigurement, etc. or on the extent of constitutional symptoms, physical impairment.  38 C.F.R. § 4.118, DC 7813 (effective prior to August 30, 2002).  Unless otherwise provided, DC 7813 is rated for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations.  Id.  

In this case, the Veteran's skin disability has been rated under dermatitis, as his skin disability does not include any medical findings of disfigurement or scars.  

Under the former DC 7806, for eczema, a noncompensable evaluation is warranted if the record shows slight exfoliation, exudation or itching on a nonexposed surface or small area.  An evaluation of 10 percent is warranted if there is evidence of exfoliation, exudation or itching involving an exposed surface or extensive area.  An evaluation of 30 percent is warranted if there is evidence of constant exudation or itching, extensive lesions, or marked disfigurement.  Finally, an evaluation of 50 percent is warranted if there is evidence of ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant.  38 C.F.R. § 4.118, DC 7806 (effective prior to August 30, 2002).  

The service treatment records show that at various times during his active military service the Veteran was treated for dyshidrotic eczema, mild varicella and fungal rashes on his face, hands, chest, feet and groin with various antifungal lotions, creams and powders, including Sporanox, Tinactin, Loprox, Lotramin, and Hydrocortisone.  

Specifically, in April 1983 the Veteran complained of a rash to the groin area for one month.  In November 1983, he was treated for tinea cruris with Nystatin.  In December 1983 he complained of a rash in his groin area that was not going away and was treated for a rash on his foot, diagnosed as tinea cruris and Athlete's foot.  In December 1984 he was treated with antifungal medications twice a day for his tinea cruris.  In July and August 1986 he complained of a rash and was diagnosed with fungal dermatitis in the scrotum.  In January 1987 it was recommended that he continue with his skin medications for his tinea corporis on the left side of his chest wall and on his groin area.  In October 1988, a physician sketched the affected areas of his groin and buttocks, and diagnosed the Veteran with tinea cruris, tinea pedis, and tinea manuum.  He was prescribed Loporox cream, Tinactin powder and Zeasorb powder, and it was recommended that he return to the clinic in 2 months for a follow-up visit.  In October 1989 the Veteran requested a refill for his Tinactin and Loprox.  In May 1991, he was again diagnosed with tinea cruris, with lesions observed on his right buttock.  In November 1991, the Veteran was treated for a rash on his legs and arms, and was prescribed Benadryl.  He was diagnosed with mild varicella and with dermatitis.  In July 1994, the Veteran was treated for a fungal infection of the left thumb nail, and in September 1994 he was treated for dyshidrotic eczema and for a rash on his face for 7 days.  In May 1995, he was diagnosed with tinea corporis and tinea cruris, after it was noted that a rash on his left thumb had spread to his face and genital area.  The Veteran complained that the rash itched very badly and scratching was what caused it to spread.  He was eventually prescribed auto lymphocytic therapy, astemizole (antihistamine) gamma- glutenyl-transferase, and T-Bili, as well as Lotramin cream.  In late 1996 to early 1997, the Veteran was treated with Sporanox for a fungal infection under his left thumb.  Notably, Reports of Medical History and Examination for the purposes of retirement, dated in April 1999, are negative for any complaints of or treatment for a skin disability.  

The Board finds that an initial 10 percent evaluation is warranted for the period prior to August 30, 2002 (the effective date of the regulation change) as the objective medical and lay evidence from service indicates findings of exfoliation, exudation or itching involving an exposed surface or extensive area.  As noted, the Veteran's rashes have previously spread to his face and arms from other unexposed surfaces.  

With resolution of the doubt in favor of the Veteran, under the prior criteria for Diagnostic Code 7806, his symptoms approximate the criteria for a 10 percent rating, but no higher, in accordance with the Schedule, prior to August 30, 2002.  For these reasons, the Board finds that, with the resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 10 percent for the service-connected tinea pedis, tinea corporis and tinea cruris are met for the period prior to August 30, 2002.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.118.  

However, the Board finds that the evidence, including his lay assertions, of the Veteran's symptomatology from that time period does not approximate findings of exudation or itching constant, extensive lesions, or marked disfigurement, which would warrant a 30 percent evaluation under the prior criteria.  In this regard, he has not asserted that he experienced constant exudation or itching, extensive lesions, or marked disfigurement for the period prior to August 30, 2002.  See Jandreau, 492 F. 3d at 1372; Buchanan, 451 F. 3d at 1331.  

Since August 30, 2002

As noted, in July 2012 the RO granted an increased rating to 10 percent for the skin disability, effective May 30, 2012.  He currently contends that his tinea pedis, tinea corporis and tinea cruris, is more severe than contemplated than the assigned 10 percent rating.  

Revised DC 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 (DC 7800), scars (DCs 7801, 7802, 7803, 7084, or 7805), or as dermatitis (DC 7806), depending upon the predominant disability.  See 38 C.F.R. § 4.118, DC 7813 (effective August 30, 2002).  

Under the revised rating criteria provided by DC 7806, a noncompensable evaluation is assigned where less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12 month period.  A 10 percent rating is assigned where at least 5 percent but less than 20 percent of the entire body is affected, or at least 5 percent but less than 20 percent of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the twelve month period.  A 30 percent rating requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or; that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period.  Finally, a rating of 60 percent under the revised criteria is warranted when the condition covers an area of more than 40 percent of the entire body or when more than 40 percent of exposed areas affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period.  38 C.F.R. § 4.118, DC 7806 (effective August 30, 2002).  

As of October 23, 2008, revised provisions for evaluating the skin were enacted.  This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008.  Accordingly, because the Veteran's claim was received before that date, these revisions do not apply to the present case.  73 Fed. Reg. 54708 (Sept. 23. 2008).  Rather, this appeal will be considered solely under the criteria effective as of the June 2000 claim.  

In a September 2002 VA skin examination the Veteran reported a history of treatment for tinea pedis, tinea cruris, and tinea corporis.  He indicated that he responded to the tinea cruris, but still had some tinea pedis.  On physical examination, the examiner observed some scaly rash on the Veteran's feet, including the soles of his feet; however, the rash at his genital area was resolved.  The Veteran was diagnosed with tinea pedis, and with tinea cruris and tinea corporis resolved.  

In his February 2003 Notice of Disagreement (NOD), the Veteran reported experiencing chronic fungal infections of his feet involving the splitting of his toe nails, chronic itching and broken skin.  He noted that at the time of the September 2002 VA examination he was having a "better day" with his symptoms, and that the examination physical findings were not a fair representation of the degree of his disability.  He indicated that on an "active day" he experiences severe itching.  

A May 2007 VA treatment record shows that the Veteran noted that he had prescription medications from a non-VA source.  VA treatment records, dated from 2007 to 2008, show the Veteran provided a list of his active outpatient medications, including Clonazepam, Paroxetine, Fluoxetine, Methocarbamol and Alprazolam for his psychiatric disorders, sleep problems, muscle pain and restless leg syndrome, and Flunisolide, a nasal spray used to treat allergies.  OTC medications listed include Aspirin, Calcium Carbonate, Glucosamine Chondroitin, Echinacea, Fexofenadine, Ibuprofen, and Zinc Sulfate.  The Veteran did not report using OTC, or VA or non-VA prescription medications to treat his skin disability at the time.  

In a June 2007 Written Brief Presentation provided by the Veteran's representative, the representative noted that the Veteran suffered from chronic fungal infections on his feet, the symptoms of which were severe enough to raise his current evaluation.  On an active day of tinea pedis, the Veteran described the itching as unbearable, and noted that he also experiences broken skin and infections that occur on a daily basis.  

A VA skin examination, dated in March 2008, reflects complaints of an intermittent rash in the groin area, usually during hot weather, lasting 2 to 3 days, which he treated three times a week during the previous 12-months with a topical, medicated powder that was neither a corticosteroid nor an immunosuppressive drug.  The Veteran denied any problems with tinea corporis or tinea pedis, but described his skin symptoms as a mild, red rash that gets pruritic in the groin area without systemic symptoms.  The examiner observed that the Veteran's tinea cruris was asymptomatic at the time, and he was diagnosed with tinea cruris.  The percentage of total body area affected was listed as between 5 percent and 10 percent, and the percentage of the exposed body area was listed as 0 percent.  

In a VA Form 21-4138, Statement in Support of Claim, dated in July 2008, the Veteran indicated that VA issued him prescription medications to treat his chronic tinea pedis, tinea corporis and tinea cruris.  He noted that a VA examination report revealed findings of "intermittent" rashes and cited findings of "mild and asymptomatic" symptoms on examination.  The Veteran argued that this examination report was evidence that he had an active skin condition.  He requested another VA examination under the provisions of Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994).  

In a Written Brief Presentation, dated in September 2008, the Veteran's representative argued that the rating assigned for his skin disability was inadequate, as the Veteran's condition had worsened since his last VA examination.  

Notably, February 2009, June 2009 and September 2009 VA treatment records show a list of active outpatient medications, including Clortrimazole, Fluconazole and Diflucan.  They include instructions of the administration of the medication, and reflect that Fluconazole was orally administered once a week for between 4 and 12 weeks.  An August 2009 prescription note indicates that the Veteran was prescribed Nizoral cream, an antifungal topical cream, to be applied twice daily.  A private treatment record from the same date shows findings of chronic tinea cruris.  A May 2010 private treatment record from the same physician reveals a diagnosis of chronic tinea cruris, for which the Veteran was prescribed Lotrisone cream, an antifungal corticosteroid cream.  

In September 2010 the Veteran underwent a VA skin examination, during which he reported symptoms of intermittent episodes of red, itching, flaking patches of skin between his toes, and on the groin and lower abdomen near the pubic region, without any systemic symptoms present.  The examiner noted there had been skin disease treatment in the past 12 months in the form of daily, constant, topical creams, not including corticosteroids or immunosuppressive drugs.  The examiner observed the percent of exposed areas affected was none, and the percent of total body area affected was less than 5 percent.  Other significant skin examination findings included no active tinea pedis because the Veteran wore anti-fungal powder daily to minimize his outbreaks, and no tinea corporis of the lower abdomen.  However, as for tinea cruris, the Veteran had excoriations on the scrotal sac from scratching, and inguinal folds showed mild irritation.  The Veteran was diagnosed with a recurrent tinea infection.  

In January 2011 the Veteran's attorney noted that throughout his service the Veteran periodically suffered from various skin rashes, and argued that he was entitled to a compensable evaluation for his skin disability.  

A March 2011 private treatment record reveals the Veteran was again diagnosed with tinea cruris for which he was again prescribed Lotrisone cream.  Private treatment records, dated from November 2008 to July 2011, reflect diagnoses of dermatitis/xerosis and tinea pedis, which were also treated with antifungal topical creams.  VA treatment records, dated in July 2011 and December 2011, show treatment for onychomycoses with Fluconazole and Miconazole Nitrate.  

In May 2012, the Veteran underwent a VA skin DBQ, during which the examiner noted a history of infectious skin conditions (including bacterial, fungal, viral treponemal and parasitic skin conditions), including tinea corporis, tinea pedis, tinea cruris, and tinea unguium, first diagnosed in 1982.  The Veteran reported that in approximately 1982 he began to experience toe nails that were becoming yellowish/deformed/cracked, and that at the same time he had an onset of an itchy rash in his groin area.  His skin conditions were diagnosed as skin fungal infections, including tinea pedis/cruris/corporis/unguium, and were treated with pills, creams and ointments.  

The Veteran indicated that the in-service treatment really did not help his skin condition much, and that when he was discharged from the service in 1999 his skin and toe nail conditions have waxed and waned over the years, but have never completely disappeared.  He noted that his groin rash has tended to spread outward from the inguinal creases, and listed his skin condition as a "7" on a scale of 0 to 10, with "0" being akin to no visible/active rash and "10" being the worst it has ever been.  He reported major flare-ups of his groin rash occurring weekly and lasting 3 to 4 days.  He also indicated that his toe nails remain the same all the time.  He noted that his tinea condition was being treated with Ketoconazole 2 percent cream which he applied to his groin area 3 to 4 times a day.  He also uses "Pedinol" (miconazole nitrate) which he applied to his feet and toe nails twice a day.  He was prescribed oral medications once a week (Diflucan) for his tinea condition last year, but it was discontinued around July 2011.  

The Veteran denied currently taking any oral pills for his skin condition.  He described symptoms of itching/discoloration in the groin/upper thigh area, crumbly/discolored/brittle toenails of both feet, and if he itched enough, small blisters would develop.  He reported that his tinea cruris had tended to spread slowly over the years, but was still primarily limited to the groin/inguinal areas/upper thighs, and did not currently affect the face/chest/back, etc.  

The examiner observed that the Veteran's skin disability did not cause scarring or disfigurement to the head, face or neck, nor did he have any systemic manifestations due to any skin disease.  The examiner noted that the Veteran had been treated with oral and topical medications during the past 12 months, but these medications were not described as topical corticosteroids, sympathomimetics, immunosuppressive retinoids, antihistamines, or systemic corticosteroids or other immunosuppressive medications.  The examiner indicated that the Veteran was given "other" oral medications for six weeks or more, but not constant, for his tinea skin infections, and "other" topical medications, constant/near constant.  The examiner noted the Veteran had no debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiform, or toxic epidermal necrolysis.  On physical examination, the examiner observed that 5 percent to less than 20 percent of the total body area was affected by infections of the skin, without any exposed area affected.  

The examiner observed that the Veteran had modest thickening/discoloration of portions of both great toenails, and that the toenail fungus condition affects 0 percent of exposed skin and less than 1 percent of total body surface area.  The examiner noted that the feet have minimal to no active tinea pedis findings, and the skin of the soles of both feet were described as smooth, without significant flaking/cracking, etc.  The examiner noted that the areas between the toes were inspected but there was no cracking/fissuring/maceration present, and indicated that the tinea pedis was controlled with treatment at the time and was clinically quiescent, without measurable activity.  The examiner observed a modest, superficial, chronic, post-inflammatory change in both the inguinal areas, and both upper thighs, although the line of demarcation was somewhat difficult to see.  The examiner estimated that the condition currently affected an area of roughly 6 inches by 3.5 inches on each inguinal/upper thigh area, as well as the scrotum.  Open/bleeding/oozing/unstable lesions were not seen.  The tinea condition did not affect motion or function, and objective pain/tenderness, ulceration, open/oozing lesions, disfigurement, and scarring were not noted on examination.  Also, the chest/face/neck/arms were not affected.  

In July 2012, the Veteran's attorney indicated that the Veteran wished to continue with his appeal for an increased rating.  The attorney noted that a 30 percent rating was warranted under DC 7806 for 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.  The attorney provided a list of the Veteran's active medications from his VA treatment records, which reveals that he was prescribed Fluconazole, "12 for 84 days" in July 2011, and that this prescription was most recently refilled by the Veteran on December 16, 2011 for another 84 day period.  The attorney noted that this course of treatment meant that the Veteran had taken this medication for a total of 24 weeks during the past year, clearly exceeding the criteria for a 30 percent evaluation during the past year.  The attorney also noted that the Veteran had been taking oral medications during periods of flare ups for his skin disability for many years, including while he was on active duty, and indicated that the service treatment records showed he was prescribed Sporanox in 1994 and 1997.  The attorney argued that in light of the Veteran's treatment with Sporanox, Diflucan and Fluconazole since service, that he is entitled to an evaluation of 30 percent, assigned from August 30, 2002, for his skin disability.  

Dorland's Illustrated Medical Dictionary defines "fluconazole" as "a triazole antifungal used in the systemic treatment of candidiasis and cryptococcal meningitis, administered orally or intravenously."  It defines "diflucan" as "a trademark for preparations of fluconazole."  It also defines "sporanox" as "a trademark for preparations of itraconazole," and "itraconazole" as "a trizole antifungal, which inhibits the synthesis of ergosterol and so disrupts the fungal cell membrane; used in a variety of infections, administered orally."   Dorland's Illustrated Medical Dictionary (31st ed. 2007).  

While the Board acknowledges that these drugs are not corticosteroids or immunosuppressive drugs, the diagnostic criteria do not expressly limit qualifying systemic therapies to corticosteroids and immunosuppressive drugs.  See 38 C.F.R. § 4.118, DC 7806.  The Board finds that Diflucan and Fluconazole can be considered a systemic therapy because their effects cannot be limited to a targeted area but are rather distributed throughout the body, including the infected areas.  See Dorland's Illustrated Medical Dictionary at 1888 (systemic is defined as pertaining to or affecting the body as a whole).  

Generally, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record.  In this case, the Board finds the Veteran competent to testify as to the nature and severity of his observable symptoms, and pharmacological therapies, including oral medications, used to treat those symptoms.  The Board also finds his statements as to the date of onset of those symptoms and treatments to be highly credible, including that he has taken oral medication to treat the chronic flare-ups of his skin disability.  See Jandreau, 492 F. 3d at 1372; Buchanan, 451 F. 3d at 1331.  

With resolution of the doubt in favor of the Veteran, under the revised criteria for Diagnostic Code 7806, his symptoms approximate the criteria for a 30 percent rating, but no higher, in accordance with the Schedule, since August 30, 2002.  For these reasons, the Board finds that, with the resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 30 percent for the service-connected tinea pedis, tinea corporis and tinea cruris are met for the period since August 30, 2002.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.118.  

However, an evaluation in excess of 30 percent under either the previous or the revised criteria is not warranted.  There is no indication that the Veteran's skin disability involves 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.  Also, there is no indication that the skin disability involves ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant.  See 38 C.F.R. § 4.118, DC 7806 (effective prior to and as of August 30, 2002).  

Extraschedular Considerations

Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  

According to the regulation, an extraschedular rating is warranted upon 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 that would render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2011).  

The above determinations are based upon consideration of the applicable schedular criteria.  The Veteran has submitted no evidence showing that his skin disability, for either period of the appeal, has markedly interfered with his employment status beyond that interference contemplated by their assigned evaluations.  Further, on the most recent VA examination in May 2012, the VA examiner opined that the Veteran's skin condition did not have any impact on his ability to work.  Moreover, he has repeatedly denied ever being hospitalized for this disability.  As such, the Board is not required to remand this matter to the RO for referral actions outlined in 38 C.F.R. § 3.321(b)(1), which concerns the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

Finally, under Rice v. Shinseki, 22. Vet. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record, raises the issue of unemployability due to service-connected disabilities, as inextricably intertwined with the issue of entitlement to total disability rated based on individual unemployability due to service-connected disabilities (TDIU).  However, in this case the Veteran has repeatedly acknowledged that he is currently employed full time as a VA clerk.  Hence any development or consideration under Rice is rendered moot.  



ORDER

Subject to the law and regulations governing payment of monetary benefits, an initial evaluation of 10 percent for the service-connected tinea pedis, tinea corporis and tinea cruris, prior to August 30, 2002, is granted.  

Subject to the law and regulations governing payment of monetary benefits, an increased evaluation of 30 percent for the service-connected tinea pedis, tinea corporis and tinea cruris, since August 30, 2002, is granted.  



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs