Citation Nr: 0421394	
Decision Date: 08/04/04    Archive Date: 08/09/04

DOCKET NO.  97-28 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for tinea manum, left 
hand, with onychomycosis, currently evaluated as 30 percent 
disabling.

2.  Entitlement to service connection for loss of additional 
teeth, other than teeth #28 and #29, for which service 
connection has already been granted, secondary to service-
connected residuals, bilateral fracture, mandible.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Tresa M. Schlecht, Counsel


INTRODUCTION

The veteran had active military service from January 1960 to 
June 1963.  

This appeal initially came before the Board of Veterans' 
Appeals (Board) on appeal from rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  

By a rating decision issued in June 1997, the RO denied an 
evaluation in excess of 10 percent for tinea manum, left 
hand.  The veteran perfected appeal of that determination in 
August 1997.  The Board REMANDED that claim by a decision 
issued in July 1999.

By an October 2002 rating decision, the RO implemented a 
September 2002 Board decision which granted service 
connection for loss of teeth #28 and #29 as a dental 
disability secondary to service-connected fractures of the 
mandible.  The veteran disagreed with limitation of service 
connection for loss of teeth to teeth #28 and #29.  By a 
remand issued in May 2003, the Board directed to the RO to 
clarify the issue on appeal concerning loss of additional 
teeth.  Based on the veteran's clarification of that claim, 
the Board finds that the issue on appeal is more accurately 
stated as reflected on the title page of this decision.

Following issuance of a statement of the case (SOC) in 
February 2004, the veteran's timely substantive appeal for 
service connection for loss of additional teeth, other than 
teeth #28 and #29, for which service connection has already 
been granted, secondary to service-connected residuals, 
bilateral fracture, mandible, was received in March 2004.  

The Board's May 2003 Remand also addressed the claim of 
entitlement to an evaluation in excess of 30 percent for 
tinea manum, left hand, on which the Board had undertaken 
additional development, remanding that claim as required by 
the decision in Disabled American Veterans, et. al. v. 
Secretary of Department of Veterans Affairs (DAV), 327 F.3d 
1339 (Fed. Cir. 2003) on appeal.  The claims now return to 
the Board for review.

In a July 2003 statement, and in his March 2004 substantive 
appeal, the veteran stated that he disagreed with the 
noncompensable evaluation assigned for his service-connected 
mandible disability.  The record before the Board does not 
reflect that this claim has been addressed.  This contention 
is REFERRED to the RO for any further action necessary.

The issue of entitlement to service connection for loss of 
additional teeth, other than teeth #28 and #29, for which 
service connection has already been granted, secondary to 
service-connected residuals, bilateral fracture, mandible, is 
addressed in the REMAND portion of the decision below and is 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC.


FINDINGS OF FACT

1.  The veteran has been specifically notified of the 
evidence and information required to substantiate the claim 
addressed in this decision, and all identified evidence has 
been obtained.

2.  The veteran's tinea manum, left hand, with onychomycosis 
has been manifested by itching and cracking of the palmar 
surface of the left hand and by abnormality of the nail beds 
during a portion of the pendancy of this appeal, but is 
currently manifested by no more severe symptomatology than 
dryness of the skin of the palmar surface of the left hand.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for 
tinea manum, left hand, with onychomycosis have not been met.  
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 4.118, Diagnostic Code 7806, 7813 (2003); 4.118, 
Diagnostic Code 7806, 7813 (as in effect prior to August 30, 
2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matter: Duties to Notify & to Assist

The Board has given consideration to the provisions of the 
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 
114 Stat. 2096 (2000) (VCAA) [codified as amended at 38 
U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West 2002)].  

This law eliminated the former statutory requirement that 
claims be well grounded.  Cf. 38 U.S.C.A. § 5107(a) (West 
1991).  The VCAA includes an enhanced duty on the part of VA 
to notify a claimant as to the information and evidence 
necessary to substantiate a claim for VA benefits.  The VCAA 
also redefines the obligations of VA with respect to its 
statutory duty to assist claimants in the development of 
their claims.  Regulations implementing the VCAA have been 
enacted.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified 
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a)].

Except for provisions pertaining to claims to reopen based on 
the submission of new and material evidence, the VCAA is 
applicable to all claims filed on or after the date of 
enactment, November 9, 2000, or filed before the date of 
enactment but not yet final as of that date.  The provisions 
of the VCAA and the implementing regulations are, 
accordingly, applicable to the claim addressed in this 
decision.  See Holliday v. Principi, 14 Vet. App. 282-83 
(2001) [the Board must make a determination as to the 
applicability of the various provisions of the VCAA to a 
particular claim].  

The Board has carefully considered the provisions of the VCAA 
and the implementing regulations in light of the record on 
appeal, and, for the reasons expressed below, finds that the 
development of the claim addressed in this decision has 
proceeded in accordance with the provisions of the law and 
regulations.

The VCAA requires VA to notify the claimant and the 
claimant's representative, if any, of any information and any 
medical or lay evidence not previously provided to the 
Secretary that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  See 38 U.S.C.A. § 5103 (West 2002); 
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

By a rating decision issued in June 1997, the RO set out the 
criteria for an evaluation in excess of 10 percent for tinea 
manum.  In an August 1997 statement of the case (SOC), the RO 
described the criteria for an increased evaluation on a 
schedular basis.  In a supplemental statement of the case 
(SSOC) issued in October 1998, the RO set out the criteria 
for a 50 percent evaluation for tinea manum.  The Board's 
July 1999 decision, in the Remand portion, discussed the 
evidence required to substantiate a claim for an evaluation 
in excess of 30 percent for tinea manum.  

In March 2002, the RO provided a letter to the veteran which 
specifically advised him of the enactment of the VCAA, 
described VA's duties to him under that act, described the 
types of evidence the veteran could submit or identify which 
might be relevant to substantiate a claim for an increased 
evaluation, and afforded him an opportunity to identify any 
relevant evidence.  

A June 2002 SSOC included the complete text of 38 C.F.R. 
§ 3.159, as revised to implement the VCAA.  The SSOC also 
again advised the veteran of the criteria for a 50 percent 
schedular evaluation for a skin disorder, as well as the 
criteria for an extraschedular evaluation.    

In January 2003, the Board provided a letter which advised 
the veteran of additional evidence being sought to assist him 
to substantiate his claim.  A May 2003 Board Remand advised 
the veteran of additional due process requirements imposed by 
the VCAA.  By a letter issued in July 2003, the veteran was 
afforded the opportunity to identify or submit evidence, and 
included an attachment tailored to address evidence required 
to substantiate a claim for an increased evaluation.

Finally, in a SSOC issued in August 2003, the RO advised the 
veteran that the criteria for evaluating skin disability had 
been revised during the pendancy of his claim, and set out 
for the veteran the criteria at the time he submitted his 
claim and the criteria as revised effective August 30, 2002.

The communications of record demonstrate that VA has complied 
with VCAA requirements to notify and assist the claimant.  It 
has been more than one year since the RO advised the claimant 
of the complete text of 38 C.F.R. § 3.159.  Although one year 
has not yet elapsed since the RO advised the veteran of the 
revisions to 38 C.F.R. § 4.118 and the criteria for 
evaluating his skin disability, the VCAA does not bar the 
Board from completing appellate review of this claim.  
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701(b), 
117 Stat. 2651, 2670 (Dec. 16, 2003) (codified at 38 U.S.C.A. 
§ 5103(b)).

The Board finds that VA has done everything reasonably 
possible to assist the veteran.  Accordingly, adjudication of 
the claims may proceed, consistent with the VCAA.  The record 
demonstrates that remand for further action in accordance 
with the VCAA would not be helpful.  See Soyini v. Derwinski, 
1 Vet. App. 540, 546 (1991) (strict adherence to requirements 
in the law does not dictate an unquestioning, blind adherence 
in the face of overwhelming evidence in support of the result 
in a particular case; such adherence would result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994) (remands which would only result in 
unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran are to be avoided).  VA has 
fully satisfied its duties to inform and assist the veteran 
as to the claim for an evaluation in excess of 30 percent for 
tinea manum.  


Finally, it is noted that the United States Court of Appeals 
for Veterans Claims (CAVC) decision in Pelegrini v. Principi, 
No. 01-944 (U.S. Vet. App. June 24, 2004) (Pelegrini II) 
(withdrawing and replacing Pelegrini v. Principi, 17 Vet. 
App. 412 (2004)) held, in part, that a VCAA notice, as 
required by 38 U.S.C. § 5103(a), must be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim for VA benefits.  

In this case, the initial AOJ decision was made in 1997, 
several years prior to enactment of the VCAA.  However, the 
case has been reviewed de novo since the VCAA was enacted and 
since the veteran was advised of the enactment of the VCAA 
and the provisions thereof.  Moreover, by a statement 
submitted in April 2004, the veteran stated that he had no 
further evidence, and he requested that his claims files be 
forwarded to the Board for appellate review.

However, assuming solely for the sake of argument and without 
conceding the correctness of Pelegrini II that essentially 
adopted the same rationale as its withdrawn predecessor, the 
Board finds that any defect with respect to the VCAA notice 
requirement in this case was harmless error for the reasons 
specified above.

Because the VCAA notice in this case was not provided to the 
appellant prior to the initial AOJ adjudication denying the 
claim, the timing of the notice does not comply with the 
express requirements of the law as found by the CAVC in 
Pelegrini II.  The CAVC did leave open the possibility that a 
notice error of this kind may be non-prejudicial to a 
claimant.  

The CAVC in Pelegrini II incorporated essentially the same 
reasoning from its pervious decision, that is that the 
failure to provide the notice until after a claimant has 
already received an initial unfavorable AOJ determination, 
i.e., a denial of the claim, would largely nullify the 
purpose of the notice and, as such, prejudice the claimant by 
forcing him or her to overcome an adverse decision, as well 
as substantially impair the orderly sequence of claims 
development and adjudication.  



On the other hand, the CAVC acknowledged that the Secretary 
could show that the lack of a pre-AOJ decision notice was not 
prejudicial to the appellant.  In light of the CAVC's 
adoption of essentially the same principle in Pelegrini II, 
the Board finds that the CAVC in Pelegrini II has left open 
the possibility of a notice error being found to be non-
prejudicial to a claimant.  To find otherwise would require 
the Board to remand every case for the purpose of having the 
AOJ provide a pre-initial adjudication notice.  

The only way the AOJ could provide such a notice, however, 
would be to vacate all prior adjudications, as well as to 
nullify the notice of disagreement and substantive appeal 
that were filed by the appellant to perfect the appeal to the 
Board.  This would be an absurd result, and as such it is not 
a reasonable construction of section 5103(a).  There is no 
basis for concluding that harmful error occurs simply because 
a claimant receives VCAA notice after an initial adverse 
adjudication.  

Moreover, while strictly following the express holding in 
Pelegrini would require the entire rating process to be 
reinitiated when notice was not provided prior to the first 
agency adjudication, this could not have been the intention 
of the CAVC, otherwise it would not have taken "due account 
of the rule of prejudicial error" in reviewing the Board's 
decision.  See 38 U.S.C. § 7261(b)(2); see also Conway v. 
Principi, 353 F. 3d 1369 (Fed. Cir. 2004) (There is no 
implicit exemption for the notice requirements contained in 
38 U.S.C. § 5103(a) from the general statutory command set 
forth in section 7261(b)(2) that the Veterans Claims Court 
shall "take due account of the rule of prejudicial error.")  

In reviewing AOJ determinations on appeal, the Board is 
required to review the evidence of record on a de novo basis 
and without providing any deference to the AOJ's decision.  
As provided by 38 U.S.C. § 7104(a), all questions in a matter 
which under 38 U.S.C. § 511(a) are subject to decision by the 
Secretary shall be subject to one review on appeal to the 
Secretary, and such final decisions are made by the Board.  



Because the Board makes the final decision on behalf of the 
Secretary with respect to claims for veterans' benefits, it 
is entirely appropriate for the Board to consider whether the 
failure to provide a pre-AOJ initial adjudication constitutes 
harmless error, especially since an AOJ determination that is 
"affirmed" by the Board is subsumed by the appellate 
decision and becomes the single and sole decision of the 
Secretary in the matter under consideration.  See 38 C.F.R. 
§ 20.1104.  There simply is no "adverse determination," as 
discussed by the CAVC in Pelegrini, for the appellant to 
overcome.  Similarly, a claimant is not compelled under 
38 U.S.C. § 5108 to proffer new and material evidence simply 
because an AOJ decision is appealed to the Board.  Rather, it 
is only after a decision of either the AOJ or the Board 
becomes final that a claimant has to surmount the reopening 
hurdle.  

All the VCAA requires is that the duty to notify is 
satisfied, and that claimants be given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished, all due process concerns 
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  

Here, the Board finds that any defect with respect to the 
timing of the VCAA notice requirement was harmless error.  
Notice of the provisions of the VCAA has been provided in 
numerous communications by the AOJ prior to the transfer and 
certification of the appellant's case to the Board, and the 
content of the notices provided fully complied with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b).  

The claimant has been provided with every opportunity to 
submit evidence and argument in support of his claim, and to 
respond to VA notices.  Therefore, notwithstanding Pelegrini, 
to decide the appeal would not be prejudicial error to the 
claimant.  Again, the Board notes that the veteran himself 
has stated that he has no further evidence, and he has 
requested that his claims files be forwarded to the Board for 
appellate review.

The current decision in Pelegrini noted that a VCAA 
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b) must: (1) inform the claimant about the 
information and evidence not of record that is necessary 
to substantiate the claim; (2) inform the claimant about 
the information and evidence that VA will seek to 
provide; (3) inform the claimant about the information 
and evidence the claimant is expected to provide; and 
(4) request or tell the claimant to provide any evidence 
in the claimant's possession that pertains to the claim, 
or something to the effect that the claimant should 
"give us everything you've got pertaining to your 
claim(s)."  

This new "fourth element" of the notice requirement 
comes from the language of 38 C.F.R. § 3.159(b)(1).  As 
the Board has already noted on several occasions, the 
veteran has already been afforded numerous opportunities 
to submit additional evidence, and has been provided the 
complete text of 38 C.F.R. § 3.159, as revised to 
implement the VCAA, including the text of 38 C.F.R. 
§ 3.159(b)(1) in at least two separate SSOCs.  

It appears to the Board that the claimant has indeed 
been notified that he should provide or identify any and 
all evidence relevant to the claim.  

In this case, because each of the four content requirements 
of a VCAA notice has been fully satisfied, the Board 
concludes that any error in not providing a single notice to 
the appellant covering all content requirements is harmless 
error.  The May 2001 notice in essence invited the veteran to 
submit any evidence he had regarding the matter at issue.  

The Board finds that VA has done everything reasonably 
possible to assist the claimant.  Adjudication of the claim 
may proceed, consistent with the VCAA.  The record 
demonstrates that remand for further action in accordance 
with the VCAA would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 541 (1991).

Having determined that the duty to notify and the duty to 
assist have been satisfied, the Board turns to an evaluation 
of the veteran's claim on the merits.  


Factual Background

By a rating decision prepared in June 1982, the veteran was 
granted service connection for a fungal infection on the left 
hand.  A diagnosis of tinea manum et unguim (tinea of the 
hand and nails) was assigned.  By a rating decision issued in 
September 1983, an initial 10 percent evaluation for that 
disability was assigned, effective in March 1982, under 
Diagnostic Code 7806.

By a claim submitted in November 1996, the veteran sought an 
increased evaluation for his service-connected skin 
disability of the left hand.  At a personal hearing conducted 
in November 1997, the veteran testified that his service-
connected fungus disease of the left hand had increased in 
severity, causing loss and deformity of the fingernails.  The 
veteran showed the hearing officer that he was losing a 
fingernail and that the fungus was affecting all the nails on 
his hand, including his thumbnail.  In addition, he had 
scaling of the skin on his hand.  

The veteran further testified that his hand disability was 
affecting his employment, since he was a bellman and a driver 
for a hotel and had to meet the public.  He testified that he 
had to hide his hand.  He also testified that some 
medications he had been using had helped the appearance of 
the skin disorder but he had to stop taking them because they 
were affecting his liver.  The veteran submitted an October 
1982 medical statement which recommended discontinuance of an 
oral medication because laboratory examination had revealed 
abnormal liver function.

By a rating decision issued in October 1998, the veteran's 
tinea manum was evaluated under Diagnostic Code (DC) 7813 
rather than DC 7806 and the evaluation was increased to 30 
percent.

The veteran submitted a June 2000 statement indicating that 
his skin disability of the left hand had improved.  Color 
photographs of the left hand obtained in June 2000, and a 
comparison photograph showing both hands, are associated with 
the claims files.  Additional color photographs obtained in 
April 2002 are also associated with the claims file.  
VA examination conducted in April 2002 disclosed marked 
dryness of the skin of both hands, especially the palmar 
surface of the left hand.  There was one small interdigital 
track.  The examiner specifically stated that there were no 
acute skin lesions.  Examination of the nails revealed 
normal-appearing nails with no significant abnormality 
detected.  The examiner concluded that the veteran had tinea 
manus and onychophytosis (disease or deformity of the nails) 
with apparent marked improvement with treatment. 

On VA examination conducted in February 2003, the veteran 
reported that he continued to be treated for service-
connected disability of the hands and nails, with improvement 
of both the skin and the nails.  There was some dry skin on 
the left hand.  The examiner stated that the area involved in 
the skin condition of the left hand, the palm and that nails, 
would be approximately 2 or 3 percent of the body's surface.  
The examiner noted that the veteran's clinical treatment 
consisted of topical steroidal creams and ointments.  The 
nails were normal, although there were some residuals in the 
appearance of the nails and there was residual fungal 
infection of the palm of the left hand causing dryness.

Outpatient clinical records dated in February 2003 reflect 
that the veteran requested refill of Eucerin cream.


Criteria

Disability evaluations are determined by the application of 
rating criteria set forth in the VA Schedule for Rating 
Disabilities (38 C.F.R. Part 4) based on the average 
impairment of earning capacity.

Separate diagnostic codes identify the various disabilities.  
38 U.S.C.A. § 1155 (West 2002).  In evaluating a disability, 
the Board considers the current examination reports in light 
of the whole recorded history to ensure that the current 
rating accurately reflects the severity of the condition.  A 
request for an increased rating must be viewed in light of 
the entire relevant medical history.  See 38 C.F.R. 4.1 
(2003); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). 

The Board has a duty to acknowledge and consider all 
regulations that are potentially applicable.  Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, as in the case in this claim on appeal, the present 
level of disability is of primary concern.  Francisco v. 
Brown, 7 Vet. App. 55 (1994).  

The current disability resulting from the veteran's service-
connected tinea manum, left hand, is rated under 38 C.F.R. § 
4.118, Diagnostic Code 7813 (2003).  The veteran's skin 
disability was evaluated under 38 C.F.R. § 4.118, DC 7806-
7899 at the time of the June 1997 rating decision which 
underlies this appeal.  As noted above, the veteran's skin 
disability was recharacterized and evaluated under DC 7813 by 
an October 1998 rating decision.

Under DC 7813, as in effect prior to August 30, 2002 ("old" 
criteria), dermatophytosis is rated on the basis of scars or 
disfigurement, on the basis of constitutional symptoms or 
physical impairment.  The old criteria for DC 7806 (eczema) 
state that a 10 percent rating is assigned with exfoliation, 
exudation, or itching, if involving an exposed surface or 
extensive area.  The next higher evaluation, a 30 percent 
rating, requires evidence of constant exudation or itching, 
extensive lesions, or marked disfigurement.  A 50 percent 
rating is warranted with ulceration or extensive exfoliation 
or crusting, and systemic or nervous manifestations, or 
exceptionally repugnant symptoms.  38 C.F.R. § 4.118, DC 7806 
(effective prior to August 30, 2002).

During the pendency of this appeal, regulatory changes 
amended the VA Schedule for Rating Disabilities, 38 C.F.R. 
Part 4 (2002), including the rating criteria for evaluating 
skin disabilities.  See 67 Fed. Reg. 49596 (July 31, 2002) 
[effective August 30, 2002].  Under the revised rating 
criteria of Diagnostic Code 7813, dermatophytosis is rated as 
disfigurement of the head, face, or neck, scars, or 
dermatitis, depending upon the predominant disability.

The rating criteria under DC 7806, as effective August 30, 
2002, provide a noncompensable evaluation for dermatitis or 
eczema when less than 5 percent of the entire body or less 
than 5 percent of exposed area is affected, and no more than 
topical therapy is required during the past 12 month period.  
A 10 percent rating is provided when 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 area is 
affected; or, intermittent systemic therapy such as 
corticosteroids or other immunosuppressive drugs required for 
a total duration of less than six weeks during the past 12-
month period.  DC 7806, as amended by 67 Fed. Reg. 49,596 
(July 31, 2002).

According to VAOPGCPREC 7-03, in Kuzma v. Principi, 341 F.3d 
1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas 
v. Derwinski, 1 Vet. App. 308 (1991), to the extent it 
conflicts with the precedents of the Supreme Court and the 
Federal Circuit.  Karnas is inconsistent with Supreme Court 
and Federal Circuit precedent insofar as Karnas provides 
that, when a statute or regulation changes while a claim is 
pending before VA or a court, whichever version of the 
statute or regulation is most favorable to the claimant will 
govern unless the statute or regulation clearly specifies 
otherwise.  Accordingly, that rule adopted in Karnas no 
longer applies in determining whether a new statute or 
regulation applies to a pending claim.

Additionally, VA's Office of General Counsel has determined 
that the amended rating criteria can be applied only for 
periods from and after the effective date of the regulatory 
change.  The Board can apply only the prior regulation to 
rate the veteran's disability for periods preceding the 
effective date of the regulatory change.  See VAOPGCPREC 3-
00.


Analysis

The transcript of the veteran's personal hearing reflects 
that the manifestations of tinea manum, including abnormality 
of the nails, was apparent to the hearing officer.  In 
contrast, the June 2000 and April 2002 color photographs of 
the veteran's left hand and nails disclose no abnormality of 
the nails or nail beds which is readily apparent to a 
layperson.  

The veteran himself noted, in a June 2000 statement, that the 
service-connected skin disability of the left hand was not 
active.  Thus, the record reflects that the criteria for a 30 
percent evaluation, disfigurement, were met during at least 
some portion of the pendancy of this appeal, although that 
criterion is not currently met.  

However, the evidence clearly reflects that none of the 
criteria for the next higher schedular evaluation, were met 
prior to August 30, 2002, under the prior criteria for DC 
7806 or DC 7813, since there was no ulceration of the hand or 
nail beds, there were no scars or constitutional symptoms, 
and no systemic or nervous manifestations.  Although the 
veteran testified that he had to hide his left hand because 
of the abnormal appearance, the evidence establishes that he 
remained able to use his left hand, so there was no physical 
impairment which would warrant assignment of a 50 percent 
evaluation.  

The evidence also establishes that none of the criteria for 
an evaluation in excess of 30 percent were met under the 
revised criteria effective from August 30, 2002.  In 
particular, the medical evidence establishes that the 
veteran's left hand is less than 5 percent of the body 
surface.  VA outpatient treatment notes from August 2002 
reflect that the veteran has required only topical therapy 
for the skin disorder affecting the left hand, and the 
primary manifestation currently is dryness of the skin, for 
which he uses Eucerin cream, a topical treatment.  The VA 
outpatient treatment records establish that he has not 
required systemic therapy such as corticosteriods since 
August 2002.  The color photographs reflect that there is 
minimal disfigurement due to tinea manum, left hand, since 
August 2002.  An evaluation in excess of 30 percent is not 
warranted under any of the current, revised criteria of 
either DC 7806 or 7813.

As an evaluation in excess of 30 percent is not warranted 
under the prior criteria or the revised criteria of DC 7806 
or DC 7813 at any time during the pendancy of this appeal, 
the Board has considered whether an evaluation in excess of 
30 percent is warranted under any other potentially 
applicable diagnostic code.  However, while DCs 7802, 7803, 
7804, and 7805 are applicable to evaluate skin disability, 
none of those DCs provide for an evaluation in excess of 30 
percent.  

DC 7801, which provides the criteria for evaluating scars of 
areas other than the head, neck, or face, provides a 40 
percent evaluation, but only where there are scars exceeding 
144 square inches in area.  As the medical evidence and color 
photographs in this case clearly establish that the veteran 
does not have scarring resulting from his tinea manum, DC 
7801 cannot be applied to warrant an evaluation in excess of 
30 percent for tinea of the left hand.

The RO discussed its consideration of an evaluation in excess 
of 30 percent based on extraschedular factors under 38 C.F.R. 
§ 3.321(b)(1).  Under the provisions of 38 C.F.R. § 
3.321(b)(1), in an exceptional case where the schedular 
evaluations are found to be inadequate, the Under Secretary 
for Benefits or the Director, Compensation and Pension 
Service, upon field station submission, is authorized to 
approve an extra-schedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities.  

The governing norm in these exceptional cases is a finding 
that the case presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
the regular schedular standards.  The evidence and the 
veteran's testimony establish that he has not been 
hospitalized for treatment of tinea manum.  

The evidence reflects that he is currently employed, and, 
while the evidence reflects that disfigurement of the left 
hand may have caused the veteran some difficulty in meeting 
the public during the course of his employment, there is no 
evidence that he lost time from work, was required to change 
jobs, or lost employment at any time as the result of the 
service-connected skin disability of the left hand.  The RO 
concluded, and the Board agrees, that the criteria for 
referral for consideration of an extraschedular evaluation in 
excess of 30 percent for the skin disability have not been 
met at any time during the pendancy of this appeal.



The evidence is not in equipoise to warrant a more favorable 
evaluation, and the provision of 38 U.S.C.A. § 5107(b) 
regarding reasonable doubt is not applicable to warrant a 
more favorable determination.  The claim for an evaluation in 
excess of 30 percent for tinea manum, left hand, must be 
denied.


ORDER

Entitlement to an evaluation in excess of 30 percent for 
tinea manum, left hand, with onychomycosis is denied.


REMAND

This claim must be afforded expeditious treatment by the 
Veterans Benefits Administration (VBA) AMC.  The law requires 
that all claims that are remanded by the Board or by the 
United States Court of Appeals for Veterans Claims (CAVC) for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See The Veterans Benefits 
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 
2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).

The CAVC has held that section 5103(a), as amended by the 
Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), 
as recently amended, require VA to inform a claimant of which 
evidence VA will provide and which evidence claimant is to 
provide, and remanding where VA failed to do so.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002).  

The RO issued a VCAA notice letter to the veteran in 
connection with his current appeal in March 2002.

The service medical records reflect that teeth #8, #12, #16, 
#17, #30, and #31 were noted as missing at the time of the 
veteran's initial dental examination in February 1960.  The 
service medical records disclose that he incurred a fracture 
of the mandible.  Following treatment of the fractured 
mandible, a March 1963 service examination indicated that 
teeth #8, #12, #16, #17, #30, and #31 were missing.  However, 
separation examination conducted in May 1963 described #8, 
#12, #15, #18, #30, and #32 were missing, with #20 and #31 
restorable.  Those descriptions of his missing teeth are 
inconsistent.  

By a Board decision issued in September 2002, and implemented 
by the RO in an October 2002 rating decision, service 
connection was granted for missing teeth #28 and #29, based 
on a VA examination report which appeared to indicate that 
teeth #28, #29, and #30 were missing.  However, on VA 
examination conducted in August 2003, the examiner determined 
that teeth #1, #2, #9, #12, #14, #16, #17, #19, #20, #29, 
#30, and #32 were missing.  This most recent description of 
missing teeth is inconsistent with respect to material as 
reported in the prior descriptions of record.  

Moreover, the August 2003 dental examination, as well as 
additional VA outpatient dental treatment records, disclose 
that the veteran has a dental prosthesis or appliance.  It is 
not clear whether this prosthesis is intended to treat the 
service-connected missing teeth, nor is there a clear 
description as to which teeth are included in or affected by 
the dental appliance or prosthesis.   

Accurate dental determination which describes what teeth are 
present and what teeth are missing is required before a 
determination as to the propriety of service connection for 
additional teeth, other than those for which service 
connection is already in effect, may be adequately addressed 
by the Board on appellate review.  In addition, specific 
description of any dental prosthesis in current use, 
including opinion as to whether any dental prosthesis or 
appliance is required for treatment of service-connected 
missing teeth, and, if so, what teeth are affected by that 
prosthesis, is also required in order to allow the Board to 
appropriately evaluate the veteran's claim.   

Accordingly, the case is REMANDED for the following actions:

1.  The appellant has the right to submit 
additional evidence and argument on the 
matter that the Board has remanded to the 
VBA AMC or RO.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

2.  The VBA AMC must review the claims 
files and ensure that all VCAA notice 
obligations have been satisfied in 
accordance with 38 U.S.C.A. §§ 5102, 
5103, and 5103A (West 2002), Veterans 
Benefits Act of 2003, Pub. L. 108-183 
,§ 701, 117 Stat. 2651, ___ (Dec. 16, 
2003) (codified at 38 U.S.C.A. § 5103), 
and any other applicable legal precedent.  
Such notice should specifically apprise 
the appellant of the evidence and 
information necessary to substantiate his 
claims and inform him whether he or VA 
bears the burden of producing or 
obtaining that evidence or information, 
and of the appropriate time limitation 
within which to submit any evidence or 
information.  38 U.S.C.A. § 5103(a) and 
(b) (West 2002); Quartuccio v. Principi, 
16 Vet. App. 183 (2002). 

3.  The VBA AMC should contact the 
veteran and request that he identify all 
healthcare providers, VA and non-VA, 
inpatient and outpatient, who have 
treated him for any dental disorder or 
since August 2003.  

He should be requested to complete and 
return the appropriate release forms so 
that VA can obtain any identified 
evidence.  All identified private 
treatment records should be requested 
directly from the healthcare providers.


4.  The VBA AMC should afford the veteran 
another opportunity to submit any 
evidence of his dental status, that is, 
what teeth were present and what teeth 
were missing and what teeth were restored 
by any dental appliance, proximate to 
service discharge, and evidence regarding 
missing teeth or dental appliances prior 
to his VA dental treatment, or any other 
evidence which might substantiate the 
veteran's contentions that he lost 
additional teeth as the result of in-
service mandibular injury.

5.  The veteran should be asked to 
identify providers of dental treatment or 
appliances following service.  The VBA 
AMC should request records from each 
identified provider.  All information 
which is not duplicative of evidence 
already received should be associated 
with the claims file.

If the VBA AMC is unable to obtain any of 
the relevant records sought, it shall 
notify the veteran that it has been 
unable to obtain such records by 
identifying the specific records not 
obtained, explaining the efforts used to 
obtain those records, and describing any 
further action to be taken with respect 
to the claim.  VCAA, Pub. L. No. 106-475, 
§ 3(a), 114 Stat. 2096, 2097-98 (2000) 
(codified at 38 U.S.C. § 5103A(b)(2)).

6.  After the development described above 
is completed, the veteran should be 
afforded a VA dental examination by a 
proper dental specialist including on a 
contract/fee basis if necessary.  

The claims file and a separate copy of 
this remand must be made available to and 
reviewed by the examiner prior and 
pursuant to conduction and completion of 
the examination(s).  The examiner must 
annotate the examination report(s) that 
the claims file was in fact made 
available for review in conjunction with 
the examination(s).  Any further 
indicated special studies must be 
conducted.  It is requested that the 
examiner address the following medical 
issues:

The examiner should discuss review of the 
service dental records and post-service 
dental records associated with the claims 
files.  The examiner should provide the 
numerical designation for each tooth the 
veteran currently has present in his 
mouth, what teeth are missing, and what 
teeth are restored through use of an 
appliance, and what teeth are affected by 
any appliance.  The examiner should 
provide an opinion, with rationale, as to 
whether it is at least as likely as not 
that any missing tooth, including any 
tooth restored through use of an 
appliance, is etiologically related to 
the veteran's service-connected 
mandibular injury.  

Each opinion expressed by the dental 
specialist must be accompanied by a 
complete rationale.  

7.  Thereafter, the VBA AMC should review 
the claims file to ensure that all of the 
foregoing requested development has been 
completed.  In particular, the VBA AMC 
should review the requested examination 
reports and required medical opinions to 
ensure that they are responsive to and in 
complete compliance with the directives 
of this remand and if they are not, the 
VBA AMC should implement corrective 
procedures.  The Board errs as a matter 
of law when it fails to ensure 
compliance, and further remand will be 
mandated.  Stegall v. West, 11 Vet. 
App. 268 (1998).  

8.  After undertaking any further 
development deemed essential in addition 
to that specified above, the VBA AMC 
should readjudicate the claim of 
entitlement to service connection for 
loss of additional teeth, other than 
teeth #28 and #29, for which service 
connection has already been granted, 
secondary to service-connected residuals, 
bilateral fracture, mandible.

If the benefit requested on appeal is not granted to the 
veteran's satisfaction, the VBA AMC should issue a 
supplemental statement of the case (SSOC).  The SSOC must 
contain notice of all relevant actions taken on the claim for 
benefits, to include a summary of the evidence and applicable 
law and regulations pertinent to the claim currently on 
appeal.  A reasonable period of time for a response should be 
afforded.  
Thereafter, the case should be returned to the Board for 
further appellate review, if in order.  By this remand, the 
Board intimates no opinion as to any final outcome warranted.  
No action is required of the veteran until he is notified by 
the VBA AMC; however, the veteran is hereby notified that 
failure to report for any scheduled VA examination(s) without 
good cause shown may adversely affect the outcome of his 
claim of entitlement to service connection, and may result in 
a denial.  38 C.F.R. § 3.655 (2003).



	                        
____________________________________________
	RONALD R. BOSCH
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


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