Citation Nr: 1118376 Decision Date: 05/12/11 Archive Date: 05/17/11 DOCKET NO. 06-27 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for dermatophytosis of the soles and toenails of both feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from October 1960 to October 1964. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a hearing before the RO's Decision Review Officer (DRO) in July 2007. A transcript of the hearing has been associated with the claims file. In September 2009, the Board remanded the matter to the RO for additional evidentiary development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to February 17, 2006, the Veteran's dermatophytosis is not shown to have been manifested by more than 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 affected; there is no showing of 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. 2. Beginning February 17, 2006, the Veteran's dermatophytosis is shown to be productive of a disability picture that more nearly approximates limitation of function of the affected part consistent with severe foot disability. CONCLUSIONS OF LAW 1. Prior to February 17, 2006, the criteria for the assignment of an evaluation in excess of 10 percent for dermatophytosis, soles and toenails of both feet, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7 (2010); 38 C.F.R. § 4.118, including Diagnostic Codes 7801-7806, 7813 (as in effect prior to October 23, 2008). 2. Beginning February 17, 2006, the criteria for the assignment of a 30 percent evaluation, but not more, for dermatophytosis, soles and toenails of both feet, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7 (2010); 38 C.F.R. § 4.118, including Diagnostic Codes 7801-7806, 7813 (as in effect prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in January 2006 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, a March 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a DRO hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Also, the Veteran was afforded several VA examinations, most recently in October 2009, to evaluate the severity of dermatophytosis. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the dermatophytosis, soles and toenails of both feet, in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially increased in severity since the most recent evaluation in October 2009. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board also finds that there was substantial compliance with the September 2009 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Specifically in this case, the Board directed the AMC/RO to schedule the Veteran for a VA examination and then issue a supplemental statement of the case (SSOC). As indicated, an adequate VA examination was accomplished in October 2009. Subsequently, the RO issued an SSOC in February 2011. For these reasons, the Board finds that there was substantial compliance with the September 2009remand directives. Accordingly, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104-05. II. Analysis The Veteran contends that a rating in excess of 10 percent is warranted for his dermatophytosis, soles and toenails of both feet. As explained below, the record supports an increased evaluation, to 30 percent, as of February 17, 2006. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 41. 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and 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). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his December 2005 claim. Skin disabilities are rated under the schedular criteria found at 38 C.F.R. § 4.118. At the outset, the Board notes that as of October 23, 2008, revised provisions for evaluating scars were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008, or if review is requested under the amended schedular criteria. The Veteran's claim was received prior to October 23, 2008, and he has not requested review under the amended schedular criteria. Accordingly, these revisions do not apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of the claim. Pertinent in this appeal, Diagnostic Code 7813 provides that dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) be rated 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 upon the predominant disability. As the Veteran's dermatophytosis involves the feet, Diagnostic Code 7800 is not for application. Diagnostic Code 7806, concerning dermatitis, provides a noncompensable (0 percent) rating in cases where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and with no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned in cases where 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 are affected, or with 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. A 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or with systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Diagnostic Code 7801, addressing scars that are deep or cause limitation of motion, provides a 10 percent rating for such scars in area(s) exceeding 6 square inches (39 sq. cm.). A 20 percent rating is assigned for such scars in area(s) exceeding 12 square inches (77 sq. cm.). A 30 percent rating is assigned for such scars in area(s) exceeding 72 square inches (465 sq. cm.). A 40 percent rating is assigned for such scars in area(s) exceeding 144 square inches (929 sq. cm.). Also potentially pertinent are Diagnostic Code 7802, concerning scars other than on the head, face, or neck, that are superficial or that do not cause limited motion where they cover an area or areas of 144 square inches (929 sq. cm.) or greater; Diagnostic Code 7803, concerning scars that are superficial and unstable; Diagnostic Code 7804, addressing a superficial scar that is painful on examination; and Diagnostic Code 7805, which provides that other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118; see also Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (VA must consider potential applications of Title 38 C.F.R., whether or not raised by claimant). The pertinent notes to these Diagnostic Codes provide that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7802. A "deep" scar is one associated with underlying soft tissue damage. Diagnostic Code 7801. A "superficial" scar is one not associated with underlying soft tissue damage. Diagnostic Codes 7802, 7803, 7804. (4) An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 7803. See 38 C.F.R. § 4.118. The joining of schedular criteria in the rating schedule by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. Tatum v. Shinseki, 23 Vet. App. 152 (2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the pertinent evidence during the period of appellate review consists of VA outpatient treatment records, private (non-VA) treatment records, SSA records, VA examination results, and the Veteran's credible testimonial statements. After review of this evidence, the Board finds that a rating in excess of the presently-assigned 10 percent is not warranted for the Veteran's skin disability for any portion of the period on appeal prior to February 17, 2006, for the following reasons. First, the Board finds that Veteran's disability is most appropriately evaluated under the schedular criteria of Diagnostic Code 7806, concerning dermatitis, prior to February 17, 2006, as this reflects the predominant disability during that time period. An increased evaluation is not warranted because the evidence does not show symptoms more nearly approximating the criteria of the next higher rating, 30 percent, under Diagnostic Code 7806. As indicated, this rating is assignable if the evidence shows 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs 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. The first pertinent evidence consists of a February 2005 VA examination, which revealed that the skin disability involved 40 percent of the bottom of the right foot and 20 percent of the bottom of the left foot. The Veteran also had onychomycosis of the great toes. The record also contains VA and private treatment records during this period, which reveal findings consistent with the results of these the VA examinations. This evidence shows, in summary, that a significant portion of the soles of the feet and toes are affected. However, this does not equate to 20 to 40 percent of the entire body, and does not involve an exposed area. In other words, the evidence confirms that 0 percent of the exposed body surface is affected. Therefore, a higher rating is not warranted on this basis under Diagnostic Code 7806. 38 C.F.R. § 4.118. Moreover, the extensive evidence, including the Veteran's own assertions, shows that he was not treated with systemic therapy, such as corticosteroids or other immunosuppressive drugs, at any point during the period under review. To the contrary, the VA outpatient treatment records, beginning in September 2004, shows that he was offered, but declined, oral medication. Accordingly, a higher rating is also not warranted on this basis under Diagnostic Code 7806. 38 C.F.R. § 4.118. With regard to the other potentially pertinent diagnostic codes, a higher rating is not warranted under Diagnostic Code 7801, because the evidence does not demonstrate symptoms more nearly approximating scars that are deep or cause limitation of motion. Evidence beginning with a private January 2006 dermatology consultation reflects fissures, also characterized as areas of active bleeding from self-induced trauma from shaving. This evidence shows lesions on the feet and toes, but does not demonstrate underlying soft tissue damage. See Diagnostic Code 7801. Furthermore, ratings higher than 10 percent are not available under Diagnostic Codes 7802-7804. Thus, prior to February 17, 2006, a rating in excess of 10 percent is not justified. The Board finds, however, that the predominant disability beginning February 17, 2006, involves limitation of function. Accordingly, a higher rating is warranted under Diagnostic Code 7805, concerning limitation of function, beginning February 17, 2006. 38 C.F.R. § 4.118. Pursuant to Diagnostic Code 7805, the Board looks to other applicable diagnostic codes to assess limitation of function. Diagnostic Codes 5276 to 5284 provide ratings for various foot disabilities. As the Veteran's disability involves the bottom of the feet and the toes, the only possible applicable diagnostic code is Diagnostic Code 5284. Under Diagnostic Code 5284, which provides rating for other foot injuries, a 10 percent rating is assigned for a moderate foot injury. A 20 percent rating is assigned for a moderately severe foot injury. The maximum rating, 30 percent, is assigned for a severe foot injury. With actual loss of use of the foot, a 40 percent rating is assigned. See 38 C.F.R. § 4.71a, at Diagnostic Code 5284, Note. The Board finds that a 30 percent disability rating is warranted beginning February 17, 2006, under Diagnostic Code 5284, as evidence shows that the disability more nearly approximates severe foot disability beginning on that date. In particular, the Veteran credibly and competently wrote in his August 2006 substantive appeal (VA Form 9) that it was extremely painful for him to walk. Dalton, 21 Vet. App. at 36; Layno, 6 Vet. App. at 470. A February 17, 2006, VA examination shows that the Veteran walked with a cane due to foot pain. Then, VA outpatient treatment records from March 2006 show that he was issued a rollator walker related to his complaints of foot pain. A subsequent VA examination in August 2007 also revealed that he walked with a cane or wheeled walker due to pain. The VA examiner also commented "(also of note the Veteran has heart disease)". Other evidence of record shows a diagnosis of peripheral neuropathy in the lower extremities. Although the evidence indicates that the Veteran's use of a walker may also be related to heart disease and peripheral neuropathy, the evidence does not clearly attribute the need for a walker to a disability other than the service-connected foot disability. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). For these reasons, a 30 percent schedular rating is assignable. The Board finds that a higher evaluation under Diagnostic Code 5284 is not warranted prior to February 17, 2006. An increased rating is only assignable as of the date the increase in disability is factually ascertainable. See 38 C.F.R. § 3.400(o). In this regard, the evidence earlier than February 17, 2006, includes VA outpatient treatment records from March 2004 to January 2006, and results of a February 2005 VA examination. These records reflect the Veteran's complaints of foot pain, but there is no indication of symptoms reflecting more than moderate limitation of function. For instance, a September 2004 VA outpatient treatment note documents that the Veteran's complaints of foot pain that "can be bad at times." Likewise, a rating higher than 30 percent is not assignable under Diagnostic Code 7805, because the evidence, including the most recent VA examination in October 2009, fails to show that the dermatophytosis involves loss of function of either foot more nearly approximating actual loss of the feet, as required for the next higher, 40 percent, rating under Diagnostic Code 5284. 38 C.F.R. § 4.71a, 4.118. For these reasons, in summary, the Board finds that the Veteran's dermatophytosis of the soles and toenails of both feet more nearly approximates severe foot injury as of February 17, 2006. 38 C.F.R. § 4.71a, 4.118. Thus, a 30 percent rating, but not higher, is assignable as of that date. "Staged ratings" are not otherwise warranted because the schedular criteria for a higher rating were not met at any point during the period under appellate review. See Hart, 21 Vet. App. at 505. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those manifestations are not present in this case, as shown. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. In fact the diagnostic criteria of 38 C.F.R. § 4.118, Diagnostic Code 7805, under which the disability has been evaluated, specifically contemplate functional limitations. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 10 percent for the dermatophytosis, soles and toenails of both feet, is denied prior to February 17, 2006. A 30 percent rating, but not higher for dermatophytosis, soles and toenails of both feet, is granted beginning February 17, 2006, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs