Citation Nr: 1303362 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-19 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for interdigital maceration of both feet. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to June 1985, with additional prior service of one year and seven days. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, granted the Veteran's August 2006 claim of entitlement to service connection for a bilateral foot skin condition and assigned a noncompensable disability rating, effective August 29, 2006. The Veteran appealed with respect to the initially assigned disability rating and, in April 2008, the Montgomery, Alabama, RO granted a 10 percent rating, effective August 29, 2006. Inasmuch as a rating higher than 10 percent is available, and inasmuch as a claimant is presumed to be maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2011 the Board remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records as well as an August 2012 VA examination. There is also an October 2012 rating decision where the RO reviewed all of the evidence of record and continued the Veteran's 10 percent disability rating for the service-connected interdigital maceration of both feet. In accordance with the opinion of the United States Court of Appeals for Veterans Claims (Court), entitlement to a TDIU has been included as an issue on appeal, as it is part and parcel of the Veteran's claim for an increased disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected interdigital maceration of both feet is manifested by a total of 5 to 20 percent of the total body and 5 to 20 percent of the exposed area. In addition, there is no use of 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. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for the service-connected interdigital maceration of both feet have not been met. 38 U.S.C.A. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in August 2006. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Board is aware that the August 2006 letter concerned the Veteran's initial service connection claim, not the higher rating claim. However, the current appeal arose upon the grant of service connection in February 2007. The question of whether a further VCAA letter for such a "downstream" issue is required was addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedent opinion, the General Counsel held that, in such circumstances, a Statement of the Case was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the requirement of a Statement of the Case was met in April 2008. In addition, the August 2006 letter also informed the Veteran of the criteria of the applicable disability ratings and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes private medical records, VA outpatient treatment reports, VA examinations, and statements from the Veteran and his representative. The Veteran was afforded VA examinations in January 2007, October 2001, and August 2012. The Board finds that these examinations are adequate for rating purposes because they conveyed pertinent medical findings stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). As noted above, the February 2007 RO rating decision granted the Veteran service connection with an initial noncompensable evaluation for his interdigital maceration of both feet effective August 29, 2006. The April 2008 rating decision granted the Veteran a higher initial rating of 10 percent effective August 29, 2006. The October 2012 rating decision continued the Veteran's 10 percent disability rating. The Veteran was granted a 10 percent disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that prior to this appeal, the diagnostic criteria for evaluating skin disorders, including 38 C.F.R. § 4.118 , Diagnostic Code 7806, were substantially revised. Since these revisions were effectuated as of August 30, 2002, and the Veteran's claim was filed in August 2006, the Board finds that only the new rating criteria is effective. See 67 Fed. Reg. 49,590 - 49,599 (2002). The Board also notes that the regulations pertaining to rating skin disabilities were revised once again, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Diagnostic Code 7806 provides for a noncompensable rating if less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12- month period. A 10 percent rating is warranted if the eczema or dermatitis results in at least 5 percent, but less than 20 percent, of the entire body being affected, or at least 5 percent, but less than 20 percent, of exposed areas being affected; or, if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent evaluation is assigned in cases where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is 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. A 60 percent evaluation is warranted in cases of more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. After a careful review of the Veteran's claims file the Board finds that the service-connected interdigital maceration of both feet does not warrant a higher initial rating. In order for the Veteran to warrant a higher initial rating the Veteran's service-connected interdigital maceration of both feet must be manifested by 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is 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. However, the total area affected was noted to be 4 percent during the January 2007 VA examination, less than 5 percent during the October 2011 VA examination, and 5 to less than 20 percent during the August 2012 VA examination. While VA treatment records show intermittent skin symptomatology affecting the interdigital space of the toes, ventral toes, and plantar surface of the feet, there is no indication that these symptoms covered 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected. The affected exposed area was noted to be 100 percent of only the interdigital skin in the January 2007 examination report, 5 to 20 percent in the October 2011 examination report, and zero percent in the August 2012 examination report. Thus, the Veteran does not meet the percentage requirements for the 30 percent disability rating. The Board notes that though in January 2007 it was indicated that the Veteran had 100 percent of the exposed area affected it was noted to be only the interdigital skin and not the entire service-connected area (the feet). Therefore, the Veteran does not warrant an increased rating based upon the January 2007 VA examination. Additionally, the Veteran does not warrant a higher initial rating based on the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. Although VA treatment records dated throughout the appeal period show that the Veteran's was given numerous prescriptions for his skin symptomatology, to include topical ointments, creams, antibiotics, and antifungal medications, these medications are either topical and/or are not systemic in nature. At the October 2011 VA examination the Veteran reported that he was previously treated with topical and prescription medications, but that he had not used any prescriptions for the past several months. Instead, he used over the counter antifungal creams, powders, and Vaseline; the antifungal cream was used on an intermittent basis with the last time over a month ago. At both the October 2011 and August 2012 VA examinations it was noted that the Veteran only used topical medications and for 6 weeks or more but not constantly. Thus, the Board finds that the Veteran's interdigital maceration of both feet is not manifested by 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 and a higher initial rating of 30 percent is not warranted. The Board has also considered whether higher disability ratings are warranted under the alternative diagnostic codes enumerated in Diagnostic Code 7806, under Diagnostic Codes 7800 for disfigurement of the head face or neck or Diagnostic Codes 7801 to 7805 for scars. However, the there is no evidence of any scarring or disfigurement, underlying soft tissue damage, limited motion, instability, pain, or limitation of function that would afford the Veteran ratings higher than currently assigned, such diagnostic codes are not for application under the circumstances of this case. In reaching the above determination, the Board has considered the Veteran's statements as to the nature and severity of his skin disability. The Veteran is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports increased evaluations in excess of what has been assigned or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1994) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The Board has also considered whether "staged" ratings are appropriate in this case. See Fenderson, 12 Vet. App. 119. However, in the present case, there is no indication that the Veteran's symptoms warranted disability ratings other than what has been upheld herein and does not show that staged ratings are warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 . The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111(2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's interdigital maceration of both feet is contemplated by the rating criteria. It was noted in October 2012 that the Veteran's interdigital maceration of both feet limited his ability to walk and stand for prolonged periods. However, the Board finds that there is no evidence that takes the Veteran's service-connected interdigital maceration of both feet out of the rating schedule; instead, the Board finds that any limitations are taken into account with the Veteran's 10 percent disability rating. Thus, the rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. In sum, the Board finds that the Veteran's service-connected interdigital maceration of both feet is not manifested by 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; 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. Therefore, an initial rating higher than 10 percent is not warranted. ORDER A higher initial rating in excess of 10 percent for the service-connected interdigital maceration of both feet is denied. REMAND Unfortunately, a remand is required with respect to the Veteran's remaining TDIU claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). As indicated in the introduction, the Board has included TDIU as an issue on appeal pursuant to Rice v. Shinseki, 22 Vet. Ap. 47 (2009). In support of his skin disability claim, the Veteran submitted an October 2009 letter in which his private physician relayed that the Veteran received treatment at a VA medical facility for a psychiatric disorder and his feet. The physician stated that the Veteran retired from his job at the post office due to his condition and indicated that the Veteran was not able to return to work. Additionally, in the October 2011 VA examination report, the VA examiner concluded that the Veteran's skin disability impacted his ability perform physical labor due to pain that interfered with prolonged standing and walking. Thus, the issue of entitlement to a TDIU has been reasonably raised by the evidence of record. Id. However, appellate review of the TDIU element of the Veteran's claim at this time would be premature. In this regard, the Veteran should be sent a VCAA notice letter regarding the TDIU element of his claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Thereafter, the RO should undertake any additional development deemed necessary to adjudicate the claim for TDIU benefits. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter should explain what information or evidence (medical or lay) is necessary to substantiate the TDIU element of the Veteran's claim. It should indicate the information and evidence that is to be provided by the Veteran, including a formal application form and an employment information form, and that VA will attempt to obtain on his behalf. It also should include information concerning the assignment of disability ratings and effective dates, keeping in mind that TDIU is part of an increased rating claim. 2. Provide the Veteran with a formal claim for a TDIU (VA Form 21-8940) and request that he return the completed form including an employment history. 3. Thereafter, review the Veteran's claims file and determine whether further development is warranted, to include obtaining additional medical evidence or medical opinion, as is deemed necessary. If further action is required, it should be undertaken prior to further adjudication of the claim. 4. Following completion of the above, adjudicate whether the Veteran is entitled to a TDIU under the provisions of 38 C.F.R. § 4.16 on the basis of his service-connected disabilities. If the decision with respect to the claim is adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). CONTINUED NEXT PAGE 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. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs