Citation Nr: 1307690 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 12-04 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial compensable rating for jungle rot (unspecified skin infection of the feet and legs), from October 30, 2007 to September 19, 2011. 2. Entitlement to an initial rating in excess of 10 percent from September 20, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1943 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which granted service connection for jungle rot (unspecified skin infection of the feet and legs), assigning a noncompensable evaluation effective October 30, 2007. In January 2011, the Veteran submitted a notice of disagreement (NOD) with the disability rating assigned and subsequently perfected his appeal in February 2012. In February 2012, VA's Regional Office (RO) in Cleveland, Ohio increased the Veteran's disability rating for jungle rot to 10 percent, effective September 20, 2011. Since the RO did not assign the maximum disability rating possible, the appeal for a higher rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran perfected his appeal from the November 2010 assignment of an initial noncompensable disability rating, therefore, the Board will address whether he was entitled to a disability rating higher than 0 percent prior to September 20, 2011 and whether he is entitled to a disability rating higher than 10 percent from September 20, 2011 to the present. Therefore, the issue on appeal has been rephrased as shown above. In June 2012, the Board remanded the Veteran's claim of entitlement to increased initial ratings for jungle rot to the AMC for further evidentiary development, including obtaining outstanding VA treatment records, attempting to obtain outstanding private treatment records, and providing the Veteran with a new VA examination. The Board is satisfied the requested development has been substantially accomplished and will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, from October 30, 2007 to September 19, 2011, his jungle rot (unspecified skin infection of the feet and legs) affected at least 5 percent, but less than 20 percent of his total body area or exposed body areas, and systemic corticosteroids or other immunosuppressive drugs were not prescribed. 2. From September 20, 2011, the Veteran's jungle rot (unspecified skin infection of the feet and legs) affected less than 20 percent of his total body area or exposed body areas, and systemic corticosteroids or other immunosuppressive drugs were not prescribed. CONCLUSIONS OF LAW 1. From October 30, 2007 to September 19, 2011, the criteria for a 10 percent initial rating for jungle rot (unspecified skin infection of the feet and legs) were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2007). 2. From September 20, 2011, the criteria for an initial rating in excess of 10 percent for jungle rot (unspecified skin infection of the feet and legs) were not met during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the claim for an increased rating for dermatitis arises from a disagreement with the initial disability rating that was assigned 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's service and VA treatment records have been obtained and he was provided with VA examinations which are sufficient for rating purposes. The case was remanded by the Board in June 2012 to obtain outstanding private medical records and afford the Veteran a VA examination. The RO has substantially complied with the Board's remand instructions. As such, the Board finds that no further assistance to develop evidence is required, and the Veteran will not be prejudiced by a decision on the merits of his claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The service-connected jungle rot (unspecified skin infection of the feet and legs) disability is rated 0 percent, under Diagnostic Code 7806, from October 30, 2007 to September 19, 2011, and 10 percent from September 20, 2011. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2007). The schedular criteria by which skin disabilities are rated were recently revised, effective October 23, 2008, so that it more clearly reflects VA policies concerning the rating of scars. 73 Fed. Reg. 54,708-54,712 (September 23, 2008). Because these modifications were expressly made applicable only to claims filed on or after the effective date, they are not applicable to the instant claim, which was originally received in October 2007. Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling. Dermatitis or eczema that involves 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 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, is rated 10 percent disabling. Dermatitis or eczema that involves at least 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, is rated 30 percent disabling.38 C.F.R. § 4.118, Diagnostic Code 7806 (2007). A private medical statement from B.J.H., DPM, dated in September 2008 indicated that the Veteran had been treated for many years for a tinea infection (jungle rot) on his feet and legs. The severity of the outbreaks has varied but the problem has been chronic. At times, the outbreaks made it difficult to ambulate or wear socks. In a follow-up statement, the doctor indicated that she treated the Veteran for more than 20 years and that often the infection resulted in breakdown and erosion of the skin. In a third letter written in October 2011, she stated that the Veteran had jungle rot of the feet and legs that affected his activities over the years. At a July 2010 VA examination, the Veteran reported that his jungle rot manifested in service while he was serving in Guam during World War II. The condition has continued over the years and he has tried a variety of treatments that vary in effectiveness. The condition tends to flare in the summer months with the heat and humidity. He complained of itching, burning, peeling, flaking and scaling of the skin. There were no systemic symptoms and he used topical creams. On physical examination, the Veteran was diagnosed with jungle rot of the feet and bilateral calves. In an addendum statement, a nurse stated that less than 5 percent of the total body area was affected, and the head, face, neck and hands were not affected. In a January 2011 statement, the Veteran's physician stated that she had been treating the Veteran for two and a half years for his jungle rot. She noted that the rash often extended up to his knees, bilaterally and was worse in hot weather. He has taken topical steroids for the condition. Upon VA examination in September 2011, the examiner concluded that the Veteran's jungle rot affected 5 percent to less than 20 percent of total body area. He used only topical treatment for the condition. There were no painful or unstable scars present in the area. Upon VA examination in June 2012, it was confirmed that Veteran's jungle rot affected 5 percent to less than 20 percent of total body area. He used only topical treatment for the condition, and the rash on his scalp was not related to the jungle rot that he experienced in service. The Veteran and his spouse have submitted written statements attesting to the chronicity and severity of the Veteran's jungle rot symptoms. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's jungle rot is appropriately evaluated as 10 percent disabling, but that the compensable rating is warranted for the entire appeal period. In this regard, although findings from the Veteran's initial July 2010 VA examination showed that the Veteran's jungle rot affected less than five percent of exposed areas, and less than five percent of his total body area, the private treatment reports from his podiatrist indicated that the disability extended to the Veteran's knees, and was worse during the summer months. Moreover, in just a little over a year at the subsequent VA examination in September 2011, the physician stated that the disability affected at least 5 percent of the Veteran's total body area. Consequently, resolving any reasonable doubt in the Veteran's favor, and with the application of 38 C.F.R. § 4.7, the Board finds that a 10 percent rating is warranted from October 30, 2007 to September 19, 2011. The medical evidence clearly does not demonstrate that the Veteran's jungle rot affects at least 20 percent of his body or 20 percent of exposed areas at any time during the appeal period. Moreover, the clinical records fail to show that the Veteran uses systemic corticosteroids or other immunosuppressive drugs for the disability. Therefore, the Board also concludes that the criteria for an initial rating in excess of 10 percent under Diagnostic Code 7806 have not been met at any time during the appeal period. The Board has considered whether other diagnostic codes are applicable, however the evidence clearly shows that the Veteran's predominant disability is jungle rot, which is specifically contemplated in Diagnostic Code 7806. In any event, the disability, which is located on the Veteran's feet and legs, is not considered in any way disfiguring, or the equivalent of a painful or unstable scar, thus Diagnostic Codes 7800 and 7804 do not provide for a higher rating. The Board has also considered whether the appellant is entitled to an extraschedular evaluation. 38 C.F.R. § 3.321 (2012). Ordinarily, VA's Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. 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. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the criteria found in the rating schedule to determine whether the disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, the Board finds that the rating criteria adequately contemplate the manifestations of the Veteran's skin disability. Here, the service-connected disability involves significantly less than 20 percent of the Veteran's entire body and less than 20 percent of exposed areas affected, and required only topical creams during the appeal period in question. These manifestations are specifically contemplated in the pertinent rating criteria and are therefore adequate to evaluate the Veteran's disability. Accordingly, referral for consideration of extraschedular rating is not warranted. Finally, the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) held that every claim for a higher rating includes a claim for a total disability based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevents him from working. In this case, the Veteran has not claimed that his service-connected skin disability prevents him from working, and the evidence does not reflect the same. Thus, a claim for TDIU has not been raised in this decision. ORDER An initial 10 percent rating for jungle rot (unspecified skin infection of the feet and legs) is granted from October 30, 2007 to September 19, 2011, subject to the regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent from September 20, 2011 is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs