Citation Nr: 1625927 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 09-09 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating in excess of 30 percent for dermatophytosis, from June 12, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision for the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2009. A transcript of that hearing is of record and associated with the VBMS file. In May 2013 and September 2015, the Board remanded the instant claim for further development. FINDING OF FACT From June 12, 2013, the Veteran's dermatophytosis was manifested by constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. CONCLUSION OF LAW The criteria for a 60 percent rating, and no higher, from June 12, 2013, for dermatophytosis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes (Codes) 7806-7813 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board is granting in full the benefit sought on appeal for an increased rating for dermatophytosis from June 2013. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Increased Rating - Dermatophytosis The Veteran asserts that his dermatophytosis is more severe than the current rating reflects. He maintains that he has dermatophytosis that covers three quarters of his entire body. He also claims that the scales and fissures cover exposed and unexposed parts of his body. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims, such as this claim, in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). After a careful review of the medical evidence of record, the Board finds from June 12, 2013, a 60 percent rating, and no higher, is warranted for dermatophytosis. The Veteran's service-connected dermatophytosis has been evaluated as 10 percent disabling from September 8, 1982, to March 16, 2006, and 30 percent disabling from March 17, 2006, pursuant to 38 C.F.R. § 4.118. The disability has been variously evaluated under DCs 7813-7806. Diagnostic Code 7813 states that dermatophytosis may be rated as disfigurement of the head, face, or neck, (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. It is important to note at the outset that, in the present case, dermatophytosis is more appropriately rated as dermatitis/eczema and the medical evidence throughout the appeal has shown no evidence of disfigurement, nor any evidence of scarring. Under Diagnostic Code 7806, dermatitis or eczema, a 10 percent rating is warranted where the skin disability covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period; a 30 percent rating is assigned when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period; 60 percent rating is assigned with 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. In September 2009, the Veteran and his spouse testified before the undersigned VLJ. The Veteran stated that he had shedding of the skin and itching 24 hours a day. His wife described the amount and severity of the Veteran's shedding and itching and that he scratched continuously. The Veteran related that he was prescribed several different creams for his skin and pills for his itching. The Veteran underwent a VA examination in June 2013. The Veteran was described to have varying diagnoses which included dyshidrotic eczema, nummular eczema, xerosis dermatitis, seborrheic dermatitis, tinea versicolor, tinea pedis, pityriasis versicolor, actinic keratosis, seborrheic keratosis, and hyperkeratosis dermatoheliosis. At the time of the examination, the Veteran did not have any flare-ups. His skin was described as 0 percent affected on his exposed body and 34 percent of his total body was affected. His skin diagnoses that were determined to be due to service were tinea versicolor, pityriasis versicolor and pruritis. The other aforementioned skin disorders, according to the examiner, were all separate skin conditions and were not found due to service. He was treated with antihistamines, 6 weeks or more, but not constant and constant or near constantly with topical medications. He was also treated with Cetirizine on one occasion. Finally, it was noted that he had worked for 30 years as a mail handler for the United States Postal Service and his service-connected skin disorder never interfered with his activities of daily living (ADLs) or occupation. VA outpatient treatment records of June 2013 to June 2015 have been obtained and associated with the claims folder. In June 2013, the Veteran was seen for a follow-up from one year prior for his tinea versicolor, eczema, and tinea pedis. On examination, it was noted he had scattered, scaly papules less than 1 mm on the scalp and forehead. He also had scaly patches of the upper back, upper arms, and central chest. He was prescribed Ketoconazole (pill form) and benzoic acid/ salicylic acid. In May 2014, the Veteran was seen for follow-up for tinea pedis and tinea versicolor. He wanted to have refills that he used whenever he had flares. He had noted multiple new lesions on the day of the follow-up. The examiner stated that a few erythematous scaly macules were shown. Cryo was applied to 5 lesions. He was prescribed benzoic acid, salicylic acid, Miconazole powder, hydrocortisone, and Ketoconazole for treatment. The condition was said to be improved, resolved. In November 2014, essentially the same findings were shown and the same treatment was administered. He had a few erythematous scaly macules of the face and scalp and xerosis of the feet. In June 2015, he was again seen for follow-up for tinea pedis and tinea versicolor. His condition was found to be improved, with some scaling of the heels. Physical examination revealed a few erythematous scaly patches with tinea versicolor of the face/scalp and two thin erythematous scaly patches with tinea versicolor on the chest. His toenails were yellowed and thickened and he had scale on his heels. Cryo was applied to 8 lesions at that time. He was prescribed benzoic acid, salicylic acid, Miconazole powder and Ketoconazole for treatment. He was told to return to the clinic in 1 year or sooner if any changes or new concerning issues were to arise. The Veteran underwent a VA examination in November 2015. He reported waxing and waning of his rashes of the trunk, arms, and feet since service. He stated that the rashes were exacerbated by heat, causing the rash to raise/swell. It was worsened with heat, showers, and outdoor activities. Exacerbations were very pruritic, areas which were red, raised, crusted over, then became white, turning to tan, before they resolved. His rashes were said to have worsened when working in heated environments, such as when he worked in the mill for a decade in the 1980's. He reported a diffuse, reddened, macular, pruritic rash, that was worse in the summer months. The rash was stated to extend from his neck to the mid chest anteriorly, and below the scapula, posteriorly, extending to the biceps/upper arm areas, bilaterally. He reported that this rash improved during cooler months and the area of involvement included the patches of his chest and upper back, but the rash never completely disappeared. He reported that the nails infection/dermatophytosis never resolved. He reported thickened, chronically dystrophic nails that required chronic care by a podiatrist. This nail rash occurred on all 10 toenails. His feet had intermittent circular, red lesions that raised, crusted, and sloughed. This also waxed and waned, worse in the summer months, but also occurred all year. He reported that he avoided outdoor activities, not going outside without long sleeves, sunglasses, or SPF 50. He was unable to work on his cars outside more than 1/2 hour, he avoided washing and waxing his vehicle, and he could not go swimming due to his skin condition. He reported no outbreak of rash in his buttocks in years. His groin area rash was usually red, occurring in the summer months, but at the time of the examination, was not problematic. The examiner stated that based on a review of the Veteran's record, his previous diagnoses of nummular eczema, dishydrotic eczema, and seborrheic dermatitis, were most likely actual manifestations of his tinea condition as he had a biopsy done in the areas noted as eczematous that were shown to be fungal/dermatophytosis. Physical examination showed no scarring or disfigurement of the head, face, or neck. The Veteran was treated with antihistamines, 6 weeks or more, but not constant. He was also treated with Ketoconazole cream, Miconazole cream, Selenium sulfide shampoo, and salicylic acids on a constant or near constant basis. Ketoconazole cream and shampoo and Selsun shampoo were used as treatment for tinea versicolor. Benzoic and salicylic acids, and miconazole nitrate powder were used for tinea and dermatophytosis of the feet, and urea cream was used for treatment of his feet. The Veteran was found to have 20 to 40 percent of infections of the total body area and no infections of exposed body area. His total body skin infections was stated to be 38.5 percent. A thorough review of the evidence of record reveals that throughout the appeals period from June 12, 2013, a 60 percent rating, and no higher, is warranted for dermatophytosis. The physical evidence of record showed scaly papules around the neck area, upper chest, back, and arms. Throughout this period, he had no exposed skin area affected by his service-connected skin disability. His total body area affected by his service-connected skin disability was described as 38.5 percent. However, the constant or near-constant systemic therapy (Ketoconazole, cream and pill form) required during the past 12-month and necessary to warrant a 60 percent rating, has been shown. The Board has considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The United States Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the manifestations and symptoms of the Veteran's dermatophytosis were applied to the applicable rating criteria. The Board fully explained why the criteria for a 60 percent rating had been met. Moreover, the 60 percent schedular criteria is the maximum schedular criteria for the Veteran's service-connected dermatophytosis in this regard. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's dermatophytosis includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Additional Considerations The Board has also considered the Veteran's statements that his dermatophytosis disability is worse and that a higher rating should be granted for the disorder on appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his dermatophytosis disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's dermatophytosis, has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which dermatophytosis is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). For the dermatophytosis, the level of disability is rated the same throughout the rating period since June 12, 2013. Therefore, an increased rating is warranted to 60 percent since June 12, 2013. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. During the appellate period, the Veteran has not raised, nor has the record shown, that he is unemployable due to his service-connected dermatophytosis. In fact, during the June 2013 VA examination, it was specifically noted that the Veteran worked for 30 years as a mail handler and that his service-connected skin disability did not affect his ADLs or his ability to work. (CONTINUED ON NEXT PAGE) ORDER A 60 percent schedular rating, and no more since June 12, 2013, for dermatophytosis is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs