Citation Nr: 1005347 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 07-08 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating tinea versicolor, cruris, pedis and dermatitis of the trunk, inguinal areas, and feet, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active service from February 1977 to February 1980. This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2006 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied the benefits sought on appeal. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below. FINDING OF FACT The Veteran's service-connected skin disability does not affect 20 percent or more of his entire body or 20 percent or more of exposed areas, and systemic therapy such as corticosteroids or other immunosuppressive drugs is not required for a total duration of six weeks or more during a 12 month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for tinea versicolor, cruris, pedis and dermatitis of the trunk, inguinal areas, and feet, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7806, 7813 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2005 and March 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the RO has obtained VA medical records and afforded the Veteran examinations in July 2005 and May 2007 to assess the current severity of his disability. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. The Veteran essentially contends that the current evaluation assigned to his skin disability does not accurately reflect the severity of that disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's tinea and dermatitis is currently rated as 10 percent disabling under Diagnostic Code 7813, which is for dermatophytosis, and indicates to rate it as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability. The Veteran's predominant disability is dermatitis. Under Diagnostic Code 7806, dermatitis or eczema is assigned a 10 percent rating when the condition affects 5 to less than 20 percent of the entire body, or 5 to less than 20 percent of the exposed areas affected, or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is for a total duration of less than six weeks during a twelve month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2009). On VA examination in July 2005, the Veteran indicated that he had been prescribed Clotrimazole cream in March 2005, and Ketoconazole cream in June 2005. He was also using Tinactin and Desenex. The examiner examined the Veteran and indicated that he had 6.5 percent of his total body surface involved and 1.5 percent of exposed surface involved. The diagnoses were tinea capitis, versicolor, cruris, and pedis, and onychomycosis. On VA examination in May 2007, the Veteran did not indicate that he was using corticosteroids or other immunosuppressive drugs for his skin disability. The examiner indicated that on examination, the Veteran had tinea pedis in between his toes. It covered 0 percent of exposed areas and 1 percent of his entire body. He also had tinea cruris in his groin areas. It covered 0 percent of exposed areas and about 1 percent of his entire body. The Veteran does not claim and the evidence does not show that the Veteran has required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during any 12-month period during the course of his claim, for his service-connected skin condition. Moreover, the Veteran does not claim and the evidence does not show that it affects 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas. Instead, the evidence shows that it has affected no more than about 6.5 percent of his total body area and 2 percent of exposed surface involved. Thus, the schedular criteria for a higher rating are not met. The possibility of an extraschedular rating has been considered. However, the service-connected disability does not present 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. 38 C.F.R. § 3.321(b)(1). The symptoms associated with the Veteran's service-connected skin disability appear to fit squarely within the applicable rating criteria. As such, extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). In light of the above, an increased rating for the Veteran's service-connected skin disability is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER An evaluation in excess of 10 percent for tinea versicolor, cruris, pedis and dermatitis of the trunk, inguinal areas, and feet is denied. REMAND A preliminary review of the record disclose a need for further development of the Veteran's claim for service connection for PTSD prior to final appellate review. In this regard, the Board is of the opinion that there is additional evidentiary development that needs to be accomplished. The Veteran asserts that he has PTSD due to rape or sexual assault in service. PTSD and other psychiatric disorders have been assessed, including schizophrenia after psychological testing in May 2006. The Veteran indicated in December 2004 that a Sergeant Lawrence Ray and a Sergeant Harris raped him in late 1978. He told a VA health care provider in December 2004 that he was raped by his Sergeant in service, and that the Sergeant was sent to prison. In order to assist the Veteran in verifying this incident, he should be asked to identify the Sergeant by name and the date of the event and then there should be an attempt to obtain any arrest and prosecution records of the Sergeant for allegedly raping the Veteran. The Veteran also indicated through March 2005 statements that in December 1979, a German policeman named Joseph Belega followed him onto Ramstein Air Force Base to kill him, but that the policeman was caught by the Air Force Police. An attempt to obtain any arrest and prosecution records should be made. The Veteran had psychiatric symptomatology in service as shown by service medical records dated in September and October 1977, and now has a diagnosis of PTSD. An examination is necessary, as indicated below. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. The Veteran should be contacted for as much detail as possible concerning the stressful incidents he reports occurred during service, to include the name of the Sergeant who assaulted him (or specify whether both of the individuals referred to above were involved), the date of the incident, the date of the Courts Martial and any other details he can provide to assist in verifying the incident. He should also be requested to furnish as much detail as possible about the German policemen who was trying to kill him, including the date of the incident, the date of the trial, etc. 2. Thereafter, an attempt should be made to verify the incidents reported by the Veteran through official sources, including but not limited to, the Army's CID, Courts Martial records, unit records , etc. If any response indicates other sources of records that might verify the incidents, those sources should be contacted. 2. Following the development requested in the first two paragraphs, the RO/AMC should prepare a report detailing the nature of any stressor which it has determined is established by the record. If no stressor has been verified, the RO/AMC should so state in its report. This report is then to be added to the claims folder. 4. After completing the above actions, the Veteran should be afforded a psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. All indicated studies, tests and evaluations deemed necessary should be performed. The examiner is requested to review all pertinent records associated with the claims file, particularly service treatment and personnel records, and post service medical records. Regarding the claim for PTSD, the RO/AMC should provide the examiner the summary of any stressors described above, and the examiner should be informed that only these events may be considered for the purpose of determining whether exposure to an inservice stressor has resulted in the current psychiatric symptoms. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied and comment upon the link between the current symptomatology and one or more of the inservice stressors found to be established by the record. However, with respect to the claim of a personal assault, if the psychiatrist diagnoses PTSD, he or she is to provide an opinion as to whether evidence dated contemporaneous to service shows any indication that a personal assault occurred in service. Do the service medical records or service personnel records show behavior consistent with the aftermath of an assault in service? If the Veteran is not diagnosed with PTSD, the examiner is requested to offer an opinion as to whether any other diagnosed psychiatric disorder is causally or etiologically related to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs