Citation Nr: 1305964 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-35 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating for seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor. WITNESSES AT HEARING ON APPEAL The Veteran and J.B. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 2003 to May 2009 with an additional three months of unverified active military service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At his hearing, the Veteran submitted new evidence in the form of photographs, which relates to the issue on appeal. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). A claim to reopen the previously denied issue of service connection for tinea pedis being referred has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor does not cover at least 5 percent of the entire body, or at least 5 percent of exposed areas; the disorder has not required intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period; and it has not resulted in disfigurement or scarring. CONCLUSION OF LAW The criteria for an initial compensable rating for seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Code (DC) 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, a July 2009 letter informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records and also secured an examination in furtherance of his claim. A pertinent VA examination was obtained in August 2009 with a September 2009 addendum opinion. 38 C.F.R. § 3.159(c)(4). The VA examination with addendum obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disability. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. In this regard, the Veteran testified about seeing a VA physician who looked over his head and then scheduled him for a biopsy in 2011. May 2012 Hearing Transcript (T.) at 11. The appointment for the biopsy did not occur and the Veteran has not rescheduled. As the Veteran has not reported having treatment records showing the severity of his skin disability, the Board concludes that a remand to obtain additional records is not necessary. See 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 appellant are to be avoided). Also, the Veteran's contentions throughout this appeal have shown that he received treatment, both VA and private, during his service. However, a review of his STRs shows that such records were obtained. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal, but did not note the specific criteria necessary to substantiate the increased rating claim or suggest the submission of any additional evidence. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his skin disorder and he indicated that all of his treatment had been at VA facilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's skin disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. The Veteran contends that he is entitled to an initial compensable rating for the service-connected seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor due to the severity of his symptomatology. This service-connected disability is rated as zero percent or noncompensably disabling under 38 C.F.R. § 4.118, DC 7806, which evaluates impairment from dermatitis or eczema. Specifically, pursuant to DC 7806, a zero percent rating is warranted with 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. 38 C.F.R. § 4.118, DC 7806 (2012). A 10 percent rating requires that 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, or; intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent rating requires that 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. Id. A 60 percent rating requires that 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. Id. DC 7806 also provides for the disability to be rated as disfigurement of the head, face, or neck (DC 7800) or as scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id. In this case, there is no evidence of scarring associated with the service-connected skin disorder, so DCs 7801, 7802, 7803, 7804 and 7805 are not for consideration. With respect to DC 7800, the evidence fails to show that the Veteran's skin disorder meets any of the eight characteristics of disfigurement enumerated under that diagnostic code. Under note (1), the 8 characteristics of disfigurement for purposes of evaluation under § 4.118, are: a scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation: scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under note (3) the adjudicator is to take into consideration unretouched color photographs when evaluating under these criteria. Furthermore, the Board observes 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) is to be rated as disfigurement of the head, face or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118 DC 7813 (2012). As discussed above, the Veteran does not have scarring or disfigurement. The undersigned has observed the disorder during the hearing and in photographs, and while there is very slight discoloration in small spots, the Board concludes that there is no disfigurement. Accordingly, the disability is most appropriately rated under the criteria found at DC 7806. Based on the evidence of record, the Board concludes that an initial compensable rating is not warranted at any time since the award of service connection. Regarding body area affected, the evidence fails to show that the Veteran's skin disability covers 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. At the August 2009 VA examination, the Veteran's tinea versicolor was shown to involve less than two percent of total body surface area, while his pseudofolliculitis barbae involved less than one percent of total body surface area. The examiner noted that the Veteran was asymptomatic. A September 2009 addendum indicates that the lesions varied in size from a few millimeters to as much as one centimeter. It was a waxing and waning condition, which physicians would never be able to accurately measure each lesion. The examiner noted that seborrheic dermatitis was the diagnosis for the scalp and no specific lesion was noted of the scalp. The tinea versicolor was for the torso and skin other than the scalp. At his hearing, the Veteran testified that his disability affected the top of his head, the sides of his head and the back of his head. T. at 13. No evidence has been presented to show that the Veteran's skin disability covers 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. As such, a compensable rating based on percentage of body area affected is not warranted. The evidence also does not show that the Veteran requires intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. He denied using any medications to the August 2009 examiner. At his May 2012 hearing, the Veteran reported being prescribed an anti-fungal cream in service. T. at 13. He has not reported using intermittent therapy such as corticosteroids or other immunosuppressive drugs at any time since the award of service connection. There is no indication that the Veteran obtains VA or private treatment for his skin disability. As such, the Veteran does not meet the criteria for a 10 percent rating based on intermittent therapy. For these reasons, the Board finds that the criteria for an initial compensable rating for seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor has resulted in interference with employment or activities of daily life which would warrant a compensable rating. In reaching the conclusion that the Veteran's disability has not resulted in interference with employment or activities of daily life which would warrant a compensable rating, the Board acknowledges the Veteran's reports of his self-consciousness and need to wear a hat to cover his disability. See, e.g., T. at 7, 13. The Veteran is competent and credible to report how his seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor affects him. Indeed, the Veteran's reports of his self-consciousness are supported by the testimony of J.B. as well as a lay statement from a household member in August 2009. However, even when taking into account the Veteran's reports of how this disability affects him, the evidence does not show that a compensable rating is warranted or that referral for an extraschedular rating is appropriate. Even though the Veteran feels the need to wear a hat, his contentions have not shown that his disability interferes with employment or activities of daily life. His contentions do not indicate that he is unable to participate in activities of daily life or that he misses work due to his skin disability. Moreover, as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating for seborrheic dermatitis with pseudofolliculitis barbae and tinea versicolor is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs