Citation Nr: 0810045 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-14 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating higher than 10 percent for tinea versicolor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from January 1969 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In connection with his appeal the veteran testified at a videoconference hearing in May 2006 before the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before the Board. See 38 C.F.R. § 20.700(e) (2007). A transcript of the hearing is associated with the claims file. In January 2007, the Board remanded this issue for additional evidentiary development. This case has since been returned to the Board for further appellate action. FINDING OF FACT The veteran's tinea versicolor involves less than 20 percent of his entire body and less than 20 percent of exposed areas affected; it has not necessitated any systemic therapy such as corticosteroids or immunosuppressive drugs. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for tinea versicolor have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking higher initial disability rating for his service-connected tinea versicolor. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he should submit any pertinent evidence in his possession and notice with respect to the effective-date element of the claim, by letter mailed in July 2007. Although this notice was sent after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the veteran's claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication in the record or reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. Moreover, in view of the Board's determination that a higher rating is not warranted, the failure to provide earlier notice with respect to the effective-date element of the claim is clearly harmless. The Board notes that the Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). However, that case dealt with claims "that an already service connected disability has worsened or increased in severity." It is not applicable to this case because the veteran is appealing the decision assigning an initial rating for his tinea versicolor. The Board also notes that the veteran has been afforded appropriate VA examinations and service treatment records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The veteran is currently assigned a 10 percent disability rating for tinea versicolor under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under that code, a 10 percent rating is assigned for conditions affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas, or where there has been a requirement of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12- month period. The next higher 30 percent rating is authorized if the disability affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or if there has been a requirement of systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period The veteran was afforded a VA examination in August 2007 in response to the Board's remand. The examiner reviewed the claims folder in conjunction with the examination. The examiner concluded that the veteran's tinea versicolor involved 8.1 percent of the total body surface and no exposed skin. The examiner further reported that the veteran has not required any systemic therapy such as corticosteroids or immunosuppressive drugs during the past year. The examiner noted that there were a further 1 percent of total body surface and zero percent of exposed areas affected by post inflammatory hyper pigmentation in the groin due to old tinea cruris. There were also 1 percent of total body surface and zero percent of exposed skin affected by onychomycosis of the toenails. Even assuming that these conditions are attributable to the service connected disability, the area of involvement is well below the 20 percent required for a higher rating. While other medical evidence describes the percentage of specific body areas, such as the back and chest, that are affected by tinea versicolor, the August 2007 examination report is the only report to provide a figure for the entire body and exposed areas. The Board also notes that a personal acquaintance of the veteran submitted a written statement in March 2007, as did the veteran's spouse. These statements, along with written statements of the veteran, describe the type of skin symptomatology experienced by the veteran; however, they do not describe the percentage of the veteran's body affected. This is an essential criterion for determining the proper disability rating. The August 2007 examination report is therefore assigned the highest probative value, and its conclusions are adopted by the Board. In sum, the evidence deemed most probative by the Board establishes that the disability picture more closely approximates the criteria enumerated for the 10 percent level than those enumerated for a higher level. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Other Considerations The Board has considered whether there is any other schedular basis for granting the veteran's appeal but has found none. In addition, the Board has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required frequent hospitalizations for his skin disability, and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. With respect to the impact of the disability on the veteran's employment, the August 2007 VA examiner stated his opinion that the veteran's tinea versicolor would be expected to have minimal impact on the veteran's ability to work. The examiner noted that working in an extremely hot environment would be uncomfortable. Clearly there is no marked interference with employment as contemplated for an extra- schedular rating. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a disability rating higher than 10 percent for tinea versicolor is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs