Citation Nr: 1305835 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-40 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability rating for stress-related headaches. 2. Entitlement to a compensable disability rating for tinea versicolor. 3. Entitlement to a compensable disability rating for ingrown toenails. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to December 2009. He is the recipient of, among several decorations, the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Winston-Salem, North Carolina that, in part, granted service connection for stress-related headaches, tinea versicolor, and ingrown toenails, and assigned noncompensable ratings effective January 1, 2010, the day after the Veteran's separation from service. The issues of entitlement to compensable initial ratings for tinea versicolor and ingrown toenails 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 Throughout the course of the appeal, the competent and credible evidence demonstrates that the Veteran's stress-related headaches are manifested by symptoms of headache pain up to five to six times per week, but no prostrating or incapacitating episodes as contemplated by the schedule. CONCLUSION OF LAW The criteria for a compensable initial rating for the Veteran's headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for a higher initial rating for his service-connected stress-related headaches, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's service treatment records are in the claims file. The Board notes that the Veteran is service-connected for stress-related headaches effective January 1, 2010, the day after his separation from service, and the Veteran has not identified any post-service treatment records for VA to obtain. Also, there is otherwise no indication in any of the evidence in the claims file that there are any outstanding treatment records for VA to obtain. VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided with a VA examination relating to his claim in December 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's stress-related headaches since the time of the December 2009 VA examination. See 38 C.F.R. § 3.327(a) (2012). The Board adds that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the December 2009 VA examination to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's headaches under the applicable rating criteria. The Board acknowledges that the December 2009 VA examination report reflects that the Veteran only reported experiencing headaches twice per week, whereas the Veteran subsequently reported on his October 2010 appeal that he experiences them five to six times per week. As explained in greater detail below, the Board finds that headaches are capable of lay observation, and the Board has taken into account the Veteran's competent, credible reports of his headache frequency in considering whether his disability should be entitled to a higher rating. In other words, the Board finds that a remand for a VA medical opinion or examination is not necessary to provide clarification for that which the Veteran himself is competent to report. The Board also acknowledges that the Veteran reported in his notice of disagreement that he is unable to move for four to five hours due to his headaches. As explained in the analysis section below, however, the Board finds such reported symptomatology to be not credible and, therefore, that a remand for another VA examination is not required. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her 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 occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2012). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's stress-related headaches are currently assigned a noncompensable initial rating under Diagnostic Code 8199-8100, effective January 1, 2010, the day after the Veteran's separation from service. See 38 C.F.R. § 4.124a (2012). The Veteran seeks a higher initial rating. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.20, whereby the disability is rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part or system of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2012). The rating schedule does not specifically provide rating criteria for headaches. The Veteran's stress-related headaches have therefore been rated by analogy under Diagnostic Code 8100. Diagnostic Code 8100, Migraines, provides a 10 percent rating for characteristic prostrating attacks averaging once in two months over the last several months; 30 percent for characteristic prostrating attacks occurring on average once a month over the last several months; and 50 percent for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2012). The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." Also, the term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The Court has, however, explained that "productive of" for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16 (2012). The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. The Veteran was provided with a VA examination in December 2009. The December 2009 VA examination report reflects that the Veteran reported experiencing headaches twice per week, lasting 10 to 12 hours, that occur gradually without an aura, they are located occipitally, that he experienced some nausea but no vomiting, and had no visual or neurological symptoms. The Veteran reported that his headaches responded to Excedrin PM, Advil, and Motrin. The examiner noted that the Veteran has seen a doctor without a specific diagnosis. No abnormalities were noted on physical examination. The examiner recorded a diagnosis of stress-related headaches. The examiner added that the Veteran is able to perform his activities of daily living and there have been no incapacitating episodes within the past 12 months. Subsequently, the Veteran reported on his October 2010 appeal that he experiences headaches five to six times per week (rather than only two times per week as reported to the VA examiner). In that regard, the Board acknowledges that the Veteran, as a lay person, is competent to report experiencing the frequency of his headaches. See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002). The Board also acknowledges that very shortly after the December 2009 VA examination, the Veteran wrote on his April 2010 notice of disagreement that his headaches prevented him from accomplishing any movement ("to the point of I cannot move") for four to five hours at a time, but essentially they were of the same frequency of two to three times per week as he reported to the December 2009 VA examiner. In this regard, the Board finds these statements by the Veteran to lack credibility in light of the fact that he reported to the VA examiner only four months prior that his headaches responded to over-the-counter medications, that he denied any visual or neurological symptoms, and had had no incapacitating episodes in the last 12 months. Additionally, the VA examiner opined that the Veteran was able to perform all of his activities of daily living based on his interview of the Veteran and physical examination of him. In fact, the Veteran wrote on his October 2010 appeal that "medication helps" his headaches. In short, the Board finds that the Veteran's statement in his notice of disagreement with respect to the character of the headaches contradicts his report only four months prior to the VA examiner and the VA examiner's objective findings and conclusions, as well as his own statements in his subsequent formal appeal; therefore, the Veteran's reports of the character of his headache symptomatology in his notice of disagreement lacks probative value. As the Veteran is service-connected effective the day after his retirement from service, and as there are no post-service treatment records in the claims file (and none have been identified by the Veteran), the Board has carefully reviewed the Veteran's most recent service treatment records leading up to his retirement from service in order to fully consider the recent history of the Veteran's symptomatology for purposes of rating his disability. In that regard, the Board notes that the Veteran's June 2009 retirement report of medical examination reflects a diagnosis of chronic headaches, possibly tension. His concurrent report of medical history also reflects his self-report of experiencing migraines and headaches. The remainder of his service treatment records dated in the year leading up to his retirement do not reflect any complaints of headaches. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's stress-related headache symptoms meet the criteria for a compensable rating under Diagnostic Code 8100. As shown above, while the Veteran certainly experiences frequent headaches (up to 5 to 6 per week), there is no medical evidence, or credible lay evidence, that the Veteran has experienced prostrating attacks averaging once in two months over the last several months as contemplated by the schedule. As noted above, the VA examiner noted that the Veteran's headaches responded to Excedrin PM, Advil, and Motrin, he was able to perform his activities of daily living, and there have been no incapacitating episodes within the past 12 months. There is no record of treatment during the period on appeal. Therefore, there is no probative evidence of prostrating attacks so as to warrant a compensable rating under Diagnostic Code 8100. The Board has considered whether referral for an extraschedular rating is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. . ." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet.App. 57, 60 (1993), and Floyd v. Brown, 9 Vet.App. 88, 95 (1996)). "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. . .[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun at 115. "[I]n the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' 38 C.F.R. § 3.321(b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization')." Thun at 115-116. "When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Thun at 116. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's stress-related headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's stress-related headaches with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As such, an extraschedular rating is not appropriate. The Board has also considered whether staged ratings are appropriate during the period on appeal. However, based on the facts found, the Board finds that the noncompensable rating assigned for the Veteran's headaches is appropriate for the entire period on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In sum, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a compensable initial rating for his headaches. ORDER Entitlement to a compensable disability rating for stress-related headaches is denied. REMAND A. Tinea Versicolor The Veteran's tinea versicolor is currently assigned a noncompensable initial rating under Diagnostic Code 7820, effective January 1, 2010. See 38 C.F.R. § 4.118 (2012). The Veteran seeks a higher initial rating. Diagnostic Code 7820, infections of the skin not listed elsewhere, provides for rating 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 primary disability. Diagnostic Code 7800, which relates to scars or other disfigurement of the head, face, and neck, provides a 10 percent rating where there is at least one characteristic of disfigurement. Note (1) to Diagnostic Code 7800 provides that the characteristics of disfigurement include, but are not limited to, abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches. In this regard, the December 2009 VA examination report reflects that there were some lesions on the Veteran's neck (and other body parts), that they were scaly, and that the Veteran's condition was seasonal in nature, mostly in the springtime. Also, the Veteran later reported in his October 2010 appeal that he experiences lesions in various areas, including his head, neck, trunk and back. No measurements, however, of the scaly areas were noted by the December 2009 VA examiner. It is also unclear what the true nature of the Veteran's skin disability is, given the lack of detail provided in the examination report. Based thereon, the Board finds that a remand is necessary to afford the Veteran with a new VA examination, including to obtain measurements of the Veteran's tinea versicolor, particularly the scaly areas on his head. face, and neck. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board acknowledges that, to the extent possible, VA should schedule a VA examination, particularly relating to a skin disorder, during an active stage of the disease. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992). The December 2009 VA examiner noted that at the time of the examination, the Veteran had very few lesions, and that his condition was mostly occurring in the springtime. Therefore, the Board emphasizes that efforts should be made to provide the Veteran with a VA examination during the most active stage of his condition during the springtime. As the criteria for dermatitis may also be applicable, the examiner must also explore the treatment the Veteran receives for the disability, to include whether systemic therapy is required (e.g., corticosteroids or other immunosuppressive drugs). Finally, the Board notes again that there are no post-service treatment records in the claims file. At the same time, the Board acknowledges that the Veteran has not identified any post-service treatment records for VA to obtain. Regardless, the Board finds that the RO should provide the Veteran with another opportunity to identify any post-service treatment records relating to his tinea versicolor, and for the RO to obtain copies of any records so identified and associate them with the claims file. B. Ingrown Toenails The Veteran's service-connected ingrown toenails are currently assigned a noncompensable rating under Diagnostic Code 7899-7819, effective January 1, 2010. The Veteran seeks a higher initial rating. The Veteran was provided with a VA examination in December 2009. Subsequently, he reported on his October 2010 appeal that his ingrown toenails are painful and require "constant work" and medications. As noted above, however, that there are no post-service treatment records associated with the claims file, and it is not entirely clear whether the Veteran intended to indicate on his appeal that he had received recent medical treatment for his ingrown toenails. Similarly, the Veteran's statements in his notice of disagreement tend to indicate medical treatment. Therefore, a remand is necessary so that the Veteran may be provided with an opportunity to identify any recent treatment relating to his ingrown toenails (i.e., since his retirement from service) and so that any treatment records so identified may be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding VA or private treatment records dated since 2010 (since service) relating to his tinea versicolor and ingrown toenail disabilities. To that end, provide the Veteran with Forms 21-4142. If any of these records are found to be unavailable, this should be specifically noted in the claims file. 2. After the above development has been completed, afford the Veteran a VA examination in order to determine the current severity of his service-connected tinea versicolor. NOTE: Reasonable efforts should be made to schedule the VA examination in the springtime (during the more active stage of the Veteran's skin condition). The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished. A complete rationale for any opinions expressed should be provided. The examiner must note (1) the percentage of the total body area affected, (2) the percentage of exposed areas affected, (3) the total area in square inches of the Veteran's skin affected, and (4) the total area in square inches of the Veteran's head, face, and neck that is scaly. The examiner must also note whether systemic therapy is required (e.g., corticosteroids or other immunosuppressive drugs). 3. After all of the above development has been completed, perform any additional development necessary, and then readjudicate the Veteran's claims. If any of the claims remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant 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. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs