Citation Nr: 1000249 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 98-18 760 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for post-operative residuals of a right knee injury, with degenerative joint disease, currently evaluated as 20 percent disabling. 2. Entitlement to a rating in excess of 60 percent for anal fissures, to include a rating in excess of 20 percent earlier than September 25, 2000, and a rating in excess of 30 percent earlier than January 14, 2008. 3. Entitlement to a rating in excess of 10 percent for tinea versicolor of the neck, arms, trunk, and back, prior to August 30, 2002. 4. Entitlement to a rating in excess of 30 percent for tinea versicolor of the neck, arms, trunk, and back. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Goodman, Allen and Fileti, PLLC WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The Veteran had active military service from November 1969 to July 1973. This appeal initially came to the Board of Veterans' Appeals (Board) from August 1998 and August 2006 rating decisions. In February 2006, the Board partially granted, partially denied, and partially remanded the Veteran's appeal; however, the Court of Appeals for Veterans Claims (Court) vacated all of the finally decided issues in that decision and remanded the Veteran's claim for action consistent with a joint motion for remand. In that joint motion for remand it was erroneously stated that the Board decision in June 2006 had denied a rating in excess of 10 percent for the Veteran's skin condition prior to August 2002; and based on this statement, the Court vacated that part of the Board's decision. However, on page 15 of the Board's decision, the Board concluded that "[s]ince this evidence indicates that at times the [V]eteran had constant itching and that he had extensive lesions, the Board finds that prior to August 30, 2002, the [V]eteran met the criteria for a 30 percent rating for tinea versicolor under the former criteria for rating skin disabilities. Accordingly, an increased rating of 30 percent for tinea versicolor of the neck, arms, trunk, and back, prior to August 30, 2002, is granted." While it is apparent that the Board did not deny this issue, the fact remains that this favorable result for the Veteran was vacated. As such, the Board must address it once again in this decision. It is noted that during the course of appealing the June 2006 Board decision to the Court, the Veteran perfected a claim of entitlement to a TDIU to the Board; as such, this issue will also be addressed in this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to a TDIU and entitlement to increased ratings for anal fissures, for a right knee disability, and for a skin condition (in excess of 30 percent) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence demonstrates that prior to August 30, 2002, the Veteran's tinea versicolor caused periods of constant itching and extensive lesions. CONCLUSION OF LAW The criteria for a 30 percent rating for tinea versicolor of the neck, arms, trunk, and back, prior to August 30, 2002, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Two skin related issues are currently certified to the Board: 1) entitlement to a rating in excess of 10 percent for tinea versicolor of the neck, arms, trunk, and back, prior to August 30, 2002; and 2) entitlement to a rating in excess of 30 percent for tinea versicolor of the neck, arms, trunk, and back. As discussed in the introduction, the Board previously determined in a June 2006 decision that the evidence showed that at times the Veteran's tinea versicolor caused constant itching and extensive lesions, and the Board granted a 30 percent rating earlier than August 30, 2002 in recognition of this. The RO then assigned an effective date of August 4, 1997 (a date prior to the receipt of the Veteran's claim for increase which was received in February 1998). In the joint motion for remand, it was erroneously asserted that the Board had denied this claim, and the Court of Appeals for Veterans Claims then vacated the Board's decision based on this assertion. The issue of a rating in excess of 30 percent for tinea versicolor has been remanded for additional development; and, it remains unclear whether the evidence obtained in this remand will show that a rating in excess of 30 percent is warranted at any point during the Veteran's appeal. However, the Veteran should not have to wait for this development to occur to have his rating for tinea versicolor increased to 30 percent (which was already done before the decision was vacated). The evidence continues to support the grant of at least a 30 percent rating as the evidence shows that prior to August 2002 the Veteran's tinea versicolor caused constant itching and extensive lesions; and, therefore, a 30 percent rating prior to August 2002 is once again granted. With regard to the issue of entitlement to a rating in excess of 30 percent for tinea versicolor (applicable to the entirety of the Veteran's appeal), for the reasons discussed below, it must be remanded for additional development. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2004, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Additionally, the Veteran was informed of how disability ratings and effective dates were formulated by a March 2006 letter. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. VA and private treatment records have been obtained, as have Social Security Administration (SSA) records. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). Additionally, the Veteran testified at a hearing before the Board. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to a 30 percent rating for tinea versicolor of the neck, arms, trunk, and back, prior to August 30, 2002, is granted subject to the laws and regulations governing the award of monetary benefits. REMAND Four issues must unfortunately be remanded in this case: 1) entitlement to a rating in excess of 30 percent for tinea versicolor; 2) entitlement to an increased rating for a right knee disability; 3) entitlement to an increased rating for anal fissures; and 4) entitlement to a TDIU. They will be addressed in order below. The Veteran is currently service connected for tinea versicolor which is rated as 30 percent disabling. His skin condition is currently being treated with Ketoconazole cream, but it was at least at one point treated with 200mg tablets of Ketoconazole (per a September 2006 treatment record); and it is unclear whether the prescription of Ketoconazole tablets would be considered a constant or near constant systemic therapy. It was also noted in a September 2006 treatment record that neither fluconazole nor oral azoles could be prescribed (to treat the Veteran's skin condition) due to the Veteran's blood pressure medication (felodipine); and the Veteran's representative has argued that the Veteran would have been prescribed a systemic therapy, such as immunosuppressive drugs or corticosteroids, to treat his tinea versicolor, but for the fact that it would interfere with his blood pressure medication. However, it is unclear from the medical record whether all systemic therapy was precluded by the Veteran's prescribed medication or whether only a specific type of medication was precluded. As such, a medical opinion of record is needed to clarify this point and to determine if in fact some type of systemic therapy would have been prescribed but for the Veteran's other prescribed medications. The Veteran's representative has also asserted that the Veteran's skin condition should be classified as "exceptionally repugnant" but no medical professional has spoken to this proposition. This should be done. The second issue is the Veteran's right knee disability which is currently rated at 20 percent based on arthritis and limitation of motion of the knee. The law provides that a separate rating (in addition to a rating for limitation of motion) may also be assigned when evidence shows that a knee disability causes either recurrent subluxation or lateral instability. However, in this case the evidence is unclear as to whether the Veteran's knee disability in fact causes, or has caused at any point during the course of the Veteran's appeal, either recurrent subluxation or lateral instability; and, if it does cause either recurrent subluxation or lateral instability, what the severity of such is. The Veteran has voiced complaints of instability in his right knee throughout the course of his appeal, and he testified that he had fallen at least once as a result of his knee giving away. Additionally, he was given a brace for his right knee by VA, and, at least occasionally, he uses a cane. It was also noted on a VA examination in April 1998 that the Veteran had some dislocation of the patella bilaterally with knee movement. However, the objective medical evidence (such as multiple VA examinations at which no instability was found) does not appear to support a finding of either recurrent subluxation or lateral instability. As such, a remand is necessary to resolve this possible conflict. On remand it should be determined whether the Veteran now has, or had during any distinct period since October 1997, either lateral instability or recurrent subluxation in his right knee that is not being identified by the tests/procedures being administered at the multiple VA examinations; and, if not, whether the tests that are being administered are reliable indicators of either lateral instability or recurrent subluxation. If no lateral instability or recurrent subluxation is found, the examiner should indicate whether there is any relevance to the finding that the Veteran's right patella was loose (as noted at the 1998 VA examination); and, should the examiner conclude that the Veteran does not have even mild lateral instability or mild recurrent subluxation, the examiner should explain, if possible, why a knee brace was prescribed, and address the Veteran's complaints that his knee gives way. With regard to the issue of anal fissures, the Board, in a June 2006 decision remanded the issues of entitlement to a rating in excess of 20 percent for an anal fissure with drainage, prior to September 25, 2000 and entitlement to a rating in excess of 30 percent for an anal fissure with drainage. The Board directed that treatment records be obtained and the Veteran provided with a rectal examination. After the requested development was completed, the RO was instructed to readjudicate the Veteran's claim by issuing a supplemental statement of the case. The RO obtained numerous treatment records and provided the Veteran with several rectal examinations as directed by the remand. The RO then issued a rating decision in August 2008 in which it granted an increased rating for anal fissures, increasing the Veteran's rating from 30 percent to 60 percent. The RO assigned an effective date of January 14, 2008 for the increase, which the RO asserted was the date which the Veteran's claim was received. However, a review of the Veteran's claims file shows that the Veteran has been pursuing an increased rating for his anal fissures since he filed a claim in 1998. As such, while the August 2008 rating decision partially adjudicated the Veteran's claim, it did not evaluate the entirety of the appeal period (as it only evaluated the merits of the Veteran's claim back to 2008); and the fact therefore remains that no supplemental statement of the case appears to have been issued as required by the Board's remand. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now unfortunately required. 38 C.F.R. § 19.9. With regard to the issue of TDIU, in his substantive appeal that was received in February 2007, the Veteran requested a hearing before the Board at the RO. In March 2007, the Veteran's representative at the time wrote to confirm that the Veteran desired a hearing before the Board. In April 2007 the Veteran called the RO stating that he had requested a DRO hearing but had never been scheduled for one; however, there was no indication what the issue was which the Veteran requested the hearing for. In August 2007, the Veteran submitted a statement revoking his representative's power of attorney and canceling his request for a DRO hearing. However, the Veteran did not make any statement as to his request for a Board hearing. As such, it appears that his request for a Travel Board hearing remains pending with regard to the claim of entitlement to a TDIU, and he should therefore be scheduled for a hearing. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. Schedule the Veteran for a Travel Board hearing with regard to the issue of entitlement to a TDIU at the Columbia, South Carolina RO. 2. Schedule the Veteran for an examination of his skin. The examiner should be provided with the Veteran's claims file. After examining the Veteran, the examiner should address the following questions: a) does treatment of the Veteran's tinea versicolor currently require, or has it required during any distinct time period since August 30, 2002, constant or near constant systemic therapy, such as corticosteroids or other immunosuppressive drugs; in answering this question, the examiner should address the prescription of Ketoconazole tablets in 2006 (and state whether this constitutes a systemic therapy; and, if so, whether it should be considered constant or near constant). The examiner should also address whether the Veteran's other prescribed medications (such as for blood pressure) preclude the prescription of any systemic therapy for his skin condition; and, if so, whether the Veteran would be, or would have been, prescribed some type of systemic treatment if not for the conflict with his other prescribed medication. In doing so, the examiner should address the comment that the Veteran could not be prescribed fluconazole or oral azoles because of his blood pressure medication. If it is found that the prescription of systemic therapy is precluded by the Veteran's prescribed medications, the examiner should estimate how often corticosteroids/immunosuppressive therapy would be, or would have been, prescribed since August 30, 2002, but for the conflict with the Veteran's other medication. b) does an examination of the Veteran's skin condition show any ulceration, extensive exfoliation or crusting, or do the records reflect any ulceration, extensive exfoliation or crusting since February 1998. c) does the Veteran's skin condition cause any systemic or nervous manifestations, or do the records reflect any systemic or nervous manifestations during any distinct time period since February 1998. d) should the Veteran's tinea versicolor be described as exceptionally repugnant for any distinct period since February 1998. e) does the Veteran's tinea versicolor currently cover, or did it cover at any time since August 30, 2002, more than 40 percent of the Veteran's entire body or more than 40 percent of his exposed areas. A complete rationale should be provided for any opinions that are expressed. 3. Schedule the Veteran for a VA examination to determine the nature, extent, frequency and severity of his service-connected right knee disability. The claims folder should be made available to and reviewed by the examiner, whose opinions should be accompanied by a complete rationale. The examiner should expressly determine in degrees the range of motion in the Veteran's right knee and should fully describe any pain, weakness, excess fatigability, and incoordination present in the right knee during range of motion testing; and, to the fullest extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the affected joint due to pain and weakness. The examiner should also address, to the fullest extent possible, the degree of limitation, if any, caused by periods of flare-ups of the right knee. The examiner should indicate whether, and to what extent, the Veteran currently has, or has had at any point since October 1997, any lateral instability or recurrent subluxation in his right knee. In addressing this issue the examiner should discuss the fact that the Veteran currently uses a cane, wears a knee brace, and was found to have looseness of the patella in 1998. This should be reconciled with the fact that it appears that several VA examinations have not found any lateral instability or recurrent subluxation. The examiner should determine whether the Veteran has any lateral instability or recurrent subluxation in his right knee that is not being identified by the tests and procedures being administered at the multiple VA examinations; and provide an opinion whether the tests that are being administered should be considered reliable indicators of lateral instability and recurrent subluxation. If it is concluded that the Veteran does have, or had during a discrete period since October 1997, either lateral instability or recurrent subluxation, the examiner should identify the severity of such lateral instability or recurrent subluxation. If it is concluded that the Veteran does not have any knee instability, the examiner should provide an explanation for the patella being loose in the Veteran's right knee (as noted at the 1998 VA examination). Additionally, if the examiner concludes that the Veteran does not have even mild lateral instability or mild recurrent subluxation, the examiner should explain, if possible, why a knee brace was prescribed. 4. After the above action has been accomplished, the RO should undertake any other indicated development and then re- adjudicate the Veteran's claims. If the benefits sought on appeal are not granted, send the Veteran and his representative a supplemental statement of the case and give them time to respond to it before returning the file to the Board for further appellate consideration of the claim. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs