Citation Nr: 1433732 Decision Date: 07/29/14 Archive Date: 08/04/14 DOCKET NO. 09-48 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable evaluation for tinea corporis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for tinea corporis and assigned a noncompensable evaluation, effective June 15, 2006. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veterans Benefits Management System (VBMS) systems to ensure consideration of the totality of the evidence. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's tinea corporis involved at least 5 percent, but less than 20 percent of the entire body area. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for tinea corporis have been met during the entire rating period. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7806, 7813 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The present claim arose from the Veteran's disagreement with the rating assigned in connection with the grant of service connection. Once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA's duty to notify the Veteran has been satisfied. VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran also has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration . As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). Additionally, the Veteran was provided with appropriate VA examinations in December 2008 and October 2009. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the Veteran's representative argued in his July 2013 Written Brief Presentation that the VA examinations were too old to determine the current extent of the Veteran's condition, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). In this case, there has been no indication from the Veteran of an increase in severity since the last VA examination. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a) , 4.1. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran contends that a compensable rating for his service-connected tinea corporis is warranted in this case. His current noncompensable rating for tinea corporis is assigned pursuant to 38 C.F.R. § 4.118 , Diagnostic Code 7813. This diagnostic code directs that the disability be rated as disfigurement of the head, face and neck; scars; or dermatitis, depending on the predominant disability. As the evidence does not show that the Veteran has any disfigurement or scars, his disability is evaluated under 38 C.F.R. § 4.118 , Diagnostic Code 7806, which applies to dermatitis or eczema. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 23, 2008, however, these regulations apply only to claims filed on or after October 23, 2008, or when requested by the Veteran. Diagnostic Code 7806 was not altered by the regulatory change and the previous and current versions of the diagnostic code are identical. Thus, any changes to the rating criteria for evaluating skin disabilities does not affect the adjudication of the Veteran's claim for an increased rating. Diagnostic Code 7806 assigns a 0 percent rating for dermatitis or eczema, affecting less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy is required during a period of twelve months. A 10 percent rating is assigned where at least five percent but not more 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 past twelve month period. 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 the past twelve month period. The highest rating of 60 percent is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past twelve month period. Private treatment records from 2002 show that the Veteran was seen for a rash on the left side of his face, which showed a large erythematous patch with scaling and serpiginous border. He was diagnosed as having tinea. A KOH test was positive, which indicated the presence of a fungal infection, and the Veteran was given griseofulvin for treatment. A May 2008 private treatment report notes that the Veteran had a rash involving the face, crotch and groin since Vietnam. The doctor noted that the Veteran was previously given griseofulvin for treatment, which cleared the infection; however, the infection kept recurring. The report also indicated that previous scrapings had confirmed tinea. The Veteran underwent a VA examination in December 2008. The examiner noted that the Veteran had a fungal infection that involved the face, crotch, groin, fingers, and back. The Veteran reported that the infection comes and goes and involved multiple different areas, with a rash occurring 1-3 times a year and usually lasting 2-3 months before it goes away. His symptoms included itching, welts, bumps, are bleeding due to scratching too much. There were no systemic symptoms, and no treatment in the past twelve months. The examiner also noted that the Veteran used griseofulvin (an antifungal drug) in the past without relief. Upon examination, the estimated percent of the total body area affected was less than 5%. The examiner diagnosed tinea corporis. A private treatment record dated March 2009 shows the Veteran having been seen for rash in the buttocks, groin, and feet. The assessment was tinea corporis as well as tinea pedis, and it was noted that the total body area affected was 7 percent. Lamisil systemic therapy was the recommended treatment plan. A May 2009 VA dermatology treatment record indicates that the Veteran was seen for evaluation of his chronic recurrent rash in the groin, buttocks, feet, and finger and toe nails. It was noted that the Veteran was recently seen by a doctor who recommended Lamisil systemic therapy. Upon examination, the examiner noted that approximately 7 percent of the skin surface area was involved with tinea. A July 2009 VA treatment record shows that the Veteran had been on oral Lamisil for about three weeks, but it had caused a decrease in his white blood cell count, to a nadir of 2.7. Lamisil therapy had been discontinued two weeks prior, and it was noted that all body fungus had cleared, except for the nails. The Veteran was to continue using topical antifungal medication for treatment. The Veteran underwent another VA examination in October 2009. The examiner, who was the same examiner who conducted the December 2008 VA examination, noted that the infection was currently on the nails only. The examiner also noted that there was treatment within the past 12 months, and that the Veteran used topical desonide cream twice a day, for greater than 6 weeks. Upon examination, the examiner noted that less than 5 percent of the total body area was affected. After reviewing all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the criteria for an increased initial evaluation of 10 percent have been met for the entire period on appeal. The March 2009 and May 2009 treatment reports find the total body area affected to be 7 percent, which would be indicative of a 10 percent rating. The December 2008 and October 2009 VA examinations indicate the total body area affected was less than 5 percent. Therefore, as there is an approximately equal balance of evidence both for and against the claim, reasonable doubt will be resolved in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. at 49. As such, the Board finds that an initial 10 percent rating is warranted for service-connected tinea corporis. The Board, however, does not find that a rating higher than 10 percent is warranted at any time during the appeal period. The evidence has never shown 20 to 40 percent of the Veteran's entire body has been affected. Furthermore, the Veteran has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, as required for a 30 percent evaluation. Therefore, the criteria for a higher 30 percent rating under Diagnostic Code 7806 are not met in this case. Extraschedular Consideration Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the rating criteria reasonably describe the symptomatology related to the Veteran's service-connected skin disorder. The Veteran's complaints of rashes, welts, bumps, and occasional cracked skin and bleeding, which were treated with topical medications, are contemplated in the schedular criteria. Diagnostic Code 7806 specifically contemplates the percentage of the body affected, the percentage of exposed area affected, and the severity of the condition by the extent and type of the treatment involved. Diagnostic Code 7806 also provides for higher ratings for more severe symptoms involving a greater area of the body affected. The Schedular criteria are therefore adequate, and no further discussion of 38 C.F.R. § 3.321 is required. TDIU The Veteran, in an October 2009 statement, alleged that he cannot work due to his service-connected "kidneys, anxiety disorder, fungus." In an October 2009 letter, the RO provided notice regarding substantiating a claim for TDIU and requested that the Veteran complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The Veteran did not respond to this letter. However, the Board notes that a claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran did not pursue a formal TDIU claim; pursuant to Rice, the Board has considered whether a TDIU claim limited to whether the Veteran is unemployable due to his service-connected tinea corporis has been raised. However, the Veteran has not alleged that he is unemployable solely on account of his service connected tinea corporis. For example, during a December 2007 VA PTSD examination, the Veteran reported that he retired in September 2007 because he knew he was not going to get promoted anymore, and felt that his anger difficulties held him back from other promotions. Accordingly, consideration of TDIU pursuant to Rice is not warranted. ORDER Entitlement to an initial 10 percent evaluation, but no greater, for tinea corporis is granted, for the entire rating period on appeal. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs