Citation Nr: 0739158 Decision Date: 12/13/07 Archive Date: 12/19/07 DOCKET NO. 04-19 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 30 percent for service-connected fungal infection of the feet and groin, with onychomycosis and dystrophic nails. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) from a May 2002 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which continued a 30 percent disability rating for service- connected fungal infection of the feet and groin. FINDINGS OF FACT The competent and probative evidence of record demonstrates that the veteran's service-connected fungal infection of the feet and groin is characterized by subjective complaints of itching, burning, and pain in both his feet and his groin. a. He has significantly dystrophic nails, including on the great and 5th digit toenails on the right foot and the great, 2nd, and 5th toenails on the left foot. There is moderate erythema and scaliness on the plantar surfaces of his feet, as well as intermittent maceration and scaling between most of the toes on both feet. His distal pulses are intact, and his sensation, light touch, and proprioception are also intact. b. There has been noted to be a sharply delineated area of erythema on both the veteran's thighs near his genitals, as well as a pruritic rash with some satellite lesions; however, the most recent evidence of record reveals a delineated area of prior, repeated events of tinea cruris, with no evidence of active skin pathology, atrophy, or erythema CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 30 percent for service-connected fungal infection of the feet and groin, with onychomycosis and dystrophic nails, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2002 & 2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In July 2004 and January 2005, the RO sent the veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letters informed the veteran that VA would assist him in obtaining records in the custody of a Federal department or agency, including VA, the service department, and the Social Security Administration. He was advised that it was his responsibility to send medical records showing his service- connected disability had increased in severity, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide any evidence in his possession that pertained to his claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the July 2004 and January 2005 letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. Subsequently, SSOCs dated in December 2004 and January 2007 provided him with an additional 60 days to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore our conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Finally, the Board notes the RO sent the veteran a letter in March 2006 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Thus, the Board concludes that all required notice has been given to the veteran. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Facts and Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as 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). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, No. 05-2424 (Vet. App. Nov. 19, 2007). Service connection for tinea pedis was established in May 1999, and the RO granted a 10 percent disability evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Code (DC) 7899-7806 (1999), effective July 31, 1998. At that time, the RO considered an April 1999 rating decision which showed the veteran had a history of bilateral foot infections which he reported had occurred since service and were manifested by red, swollen feet with multiple open sores, associated pain, and unsightly toenails. In a rating decision dated May 2000, the RO re-characterized the veteran's service-connected skin disability as a fungal infection of the feet and groin, with onychomycosis and dystrophic nails, and increased the veteran's disability evaluation to 30 percent, effective October 29, 1999. In making this determination, the RO considered a February 2000 VA examination which showed the veteran had extensive fungal invasion of most of the lower digits, as well as evidence of prior fungal damage in the groin. In May 2002, the RO afforded the veteran a VA examination in order to evaluate the severity of his service-connected skin disability. Based upon the findings of that examination, the RO continued the veteran's 30 percent disability evaluation for service-connected fungal infection of the feet and groin. The veteran has appealed the RO's determination, asserting that his service-connected disability warrants a disability evaluation higher than 30 percent. As noted, the veteran's service-connected fungal infection of the feet and groin is rated as 30 percent disabling under DC 7899-7806. The veteran's disability is not listed on the Rating Schedule, and the RO assigned DC 7899-7806 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20. The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.118, DC 7806, for dermatitis or eczema. The Board notes that in 2002, during the pendency of the veteran's appeal, amendments were made to the rating criteria evaluating disabilities of the skin. See 67 Fed. Reg. 49,590 (July 31, 2002). This amendment and subsequent correction were made effective from August 30, 2002. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2007). Accordingly, the Board will review the disability rating under the old and new criteria. The RO evaluated the veteran's claim under the old regulations in making its rating decision dated May 2002. In the December 2004 SSOC, the RO evaluated the veteran's claim using both the old and new regulations. As such, a review of the record demonstrates that the RO considered the old and new rating criteria, and the veteran was made aware of the changes in the regulations. See Bernard v. Brown 4 Vet. App. 384 (1993). Prior to August 2002, the Rating Schedule noted that, unless otherwise provided, DCs 7807 through 7819 were to be rated as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. Under the former DC 7806, for eczema, a 30 percent evaluation was warranted where the disability was manifested by exudation or constant itching, extensive lesions, or marked disfigurement; and a 50 percent evaluation was warranted where the disability was manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnance. 38 C.F.R. § 4.118, DC 7806 (2002). Under the revised DC 7806, for dermatitis/eczema, a 30 percent rating is warranted where the skin disability covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy was required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is warranted where the disability covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy was required during the past 12-month period. Review of the pertinent evidence of record shows the veteran's service-connected fungal infection is manifested by subjective complaints of itching, burning, and pain in both the veteran's feet and his groin. The veteran has reported that his symptoms increase during the summer but are present during the entire year. With respect to the veteran's feet, objective clinical examination has revealed that the veteran has significantly dystrophic nails, including on the great and 5th digit toenails on the right foot and the great, 2nd, and 5th toenails on the left foot. The Board notes the March 2002 VA examination report reflects the veteran also had some element of dystrophic changes in his left 3rd and 4th digits, but the preponderance of the evidence reveals the veteran's service-connected skin disability affects primarily the great, 2nd, and 5th toenails on his left foot. See VA examination reports dated March 2002, December 2003, July 2004, and August 2006. The pertinent evidence also shows the veteran's service- connected fungal infection of the feet is manifested by moderate erythema and scaliness on the plantar surfaces of his feet. There is also intermittent maceration and scaling between most of the toes on both feet. See July 2004 VA examination; see also March 2004 VA outpatient treatment record. The veteran's distal pulses are intact at the posterior tibial and dorsalis pedis pulse, and his sensation, light touch, and proprioception are intact. With respect to the veteran's service-connected fungal infection of the groin area, the Board notes that the March 2002 VA examination report reflects that he had a sharply delineated area of erythema on both thighs near the genitals and a pruritic rash with some satellite lesions. Subsequent objective evaluation revealed, however, a delineated area of prior, repeated events of tinea cruris, with no evidence of active skin pathology, atrophy, or erythema. See VA examination reports dated December 2003 and August 2006. Based on the foregoing, the Board finds that the competent and probative evidence preponderates against a finding that the veteran's service-connected fungal infection of the feet and groin warrants a rating in excess of 30 percent. In evaluating the claim under the DC 7806, effective prior to August 2002, the Board notes the evidence shows the veteran has complained of constant itching associated with his service-connected disability, which warrants the 30 percent rating currently assigned. However, the Board finds that his service-connected fungal infection does not more nearly approximate the disability contemplated by the 50 percent disability evaluation. In making this determination, the Board notes that, while the evidence shows the disability is manifested by scaliness on the plantar surfaces of his feet, which could be considered exfoliation or crusting, the preponderance of the evidence is against a finding that the veteran has systemic or nervous manifestations associated with his disability. As noted above, the veteran's pulses and sensation have been consistently described as intact. In addition, the evidence shows the veteran's service-connected disability affects only his feet and groin, and has not spread to other parts of his body. See VA examination reports dated March 2002 and August 2006. Therefore, the Board find DC 7806 (2002) does not assist the veteran in obtaining a higher disability rating. The Board has considered the veteran's fungal infection under all other potentially appropriate diagnostic codes. However, his service-connected disability has never been shown to produce scarring; therefore, 38 C.F.R. § 4.118, DCs 7800 through 7805 (2002) are not for application. In evaluating the veteran's claim under the revised criteria of DC 7806, the Board again notes that the fungal infection affects only his feet and groin, which are generally not exposed. Therefore, even if the Board considered the veteran's feet and groin as exposed areas, his feet and groin do not involve more than 40 percent of his entire body. In this regard, the most recent medical evidence of record shows there are no current manifestations of the service-connected fungal infection in the veteran's groin area. See VA examination reports dated December 2003 and August 2006. As a result, the August 2006 VA examiner stated that the changes on the veteran's nail bed, which represents the extent of the veteran's service-connected disability, includes less than one percent of the total body surface area. The evidence of record shows the veteran has been previously prescribed oral antifungal medication and has used various antifungal creams to treat his service-connected disability. See VA expiation reports dated March 2002, December 2003, and July 2004. However, the most recent VA examination in August 2006 reveals the veteran is not currently on any medication to treat his service-connected disability and has not been on any medication in the past 12 months as he was unresponsive to the treatment. In this regard, the Board notes that the last time the veteran was shown to receive outpatient treatment for his service-connected fungal infection was in March 2004, at which time it was noted that he was not on any medication. See March 2004 VA outpatient treatment record. Although the examining physician prescribed the veteran oral medication at that time, there is no evidence of record which shows the veteran's service-connected disability responded to this medication or that the veteran remained on this medication for an extended period of time such that his use of the medication more nearly approximated constant or near- constant therapy during the past 12 months. Therefore, the Board finds that the veteran's service-connected fungal infection of the feet and groin warrants no more than a 30 percent evaluation under the revised criteria in DC 7806. The Board has considered the veteran's service-connected fungal infection under all other potentially applicable diagnostic codes. Under the revised criteria of DC 7813, dermatophytosis, to include ringworm of the feet (tinea pedis), is to be evaluated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801 through 7805), or dermatitis/eczema (DC 7806), depending upon the predominant disability. The Board has considered whether the predominant disability is dermatitis/eczema, disfigurement of the head, face, or neck, or scarring. As the service-connected disability is a skin condition of the feet and groin, evaluation under 38 C.F.R. § 4.118, DC 7800 (2007), for disfigurement of the head, face, or neck, is not warranted. The evidence of record does not show the skin disorder has produced scarring of the feet. Therefore, scarring is not the predominant disability and evaluation under 38 C.F.R. § 4.118, DCs 7801 through 7805 (2007) is not warranted. The Board has carefully reviewed the other available diagnostic codes and the medical evidence of record, and finds there are no other codes that provide a basis to assign an evaluation higher than the 30 percent rating currently assigned. As a result, the Board finds that the evaluation currently assigned adequately reflects the clinically established impairment experienced by the veteran. In making this determination, the Board has considered the veteran's complaints of increased pain associated with his service- connected disability. However, there is no basis under the former or current rating criteria upon which to grant an increased evaluation for the veteran's subjective complaints of pain, and the Board notes that the 30 percent evaluation currently assigned contemplates the itching, burning, and pain associated with the veteran's service-connected disability. See 38 C.F.R. § 4.118, DC 7806 (2002). Finally, in view of the Court's holding in the Hart decision, supra, the Board has considered whether the veteran is entitled to staged ratings for his service-connected disability, as the Court indicated can be done in this type of case. However, upon reviewing the longitudinal record in this case, we find that, at no time since the effective date of the current award of compensation, to include consideration of the one-year period before the claim was received, has his disability been more or less disabling than as currently rated under the present decision. In summary, and for the reasons and bases set forth above, the Board finds the evidence of record preponderates against the grant of an evaluation in excess of 30 percent for the veteran's service-connected fungal infection of the feet and groin, and the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER Entitlement to a disability evaluation in excess of 30 percent for service-connected fungal infection of the feet and groin, with onychomycosis and dystrophic nails, is denied. _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs