Citation Nr: 1309534 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 11-16 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable initial rating for bilateral tinea pedis and gryphosis/onychomycosis status post excision of right great toenail and left 4th/5th toenail. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from July 1967 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that granted the Veteran's claim for service connection and assigned a noncompensable rating. In March 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board previously remanded the claim in both April 2012 and December 2012 for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran does not contend that he cannot work because of the disability on appeal, the issue of entitlement to a TDIU has not been raised and is not before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009) FINDING OF FACT The Veteran's skin disabilities of the feet do not result in 5 percent of the total body area affected, 5 percent of the exposed area affected, or require intermittent systemic therapy. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral tinea pedis and gryphosis/onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes (DC) 7800-7806, 7813 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In his March 2012 hearing, the Veteran waived any error in the content or timing of the notice he was provided. Further, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2009, April 2012, and January 2013. The Veteran has not argued, and the record does not reflect, that the November 2009 and January 2013 examinations were inadequate for rating purposes. While the Board did find the April 2012 examination inadequate for rating purposes, it properly remanded the matter in order to obtain a new examination. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The November 2009 and January 2013 examinations contain sufficient information to rate the Veteran under the applicable Diagnostic Code. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to an Increased Initial Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 assigned. 38 C.F.R. § 4.7. The Veteran's bilateral tinea pedis and gryphosis/onychomycosis (skin disability of the feet) is rated as noncompensably disabling under Diagnostic Code 7813, which directs that the condition be rated under the criteria for scars (Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805), or as dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. As there is no evidence that the Veteran's skin disability of the feet results in scars, Diagnostic Code 7806 more closely contemplates the existing condition. Diagnostic Code 7806 assigns a noncompensable rating when the skin condition covers less than 5 percent of the entire body or less than 5 percent of the exposed area, and requires no more than topical therapy required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent rating is assigned when the skin condition covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed area affected, or; requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. Id. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran underwent a VA examination in November 2009. The Veteran stated that he had used a topical antifungal two times per day for two weeks. He stated that he had not used any other therapy for his feet. Upon examination, the examiner reported that the Veteran had no ulceration, exfoliation, disfigurement, tissue loss, inflexibility, hyperpigmentation, or limitation of motion because of his skin conditions. He had no scarring, less than one percent of his body was affected, and no exposed area was affected. He was diagnosed as suffering from tinea pedis and onychomycosis. The Veteran underwent a VA examination in January 2013. He reported using a topical antifungal over the last year. He reported that he had not been prescribed any oral medication or used any other therapy for treatment of his skin conditions. Upon examination, the examiner reported that the Veteran had constant or near constant use of topical medications, but no corticosteroids, immunosuppresives, or other oral medications. The examiner noted that less than 5 percent of the Veteran's total body area was affected by his conditions, and that none of his exposed area was affected. He was diagnosed as suffering from hyperhidrosis, tinea pedis, and onychomycosis. His VA treatment records show continuing treatment for his skin conditions of the feet, mirroring the findings from the VA examinations. In his March 2012 video conference hearing, the Veteran stated that his condition was getting worse, and that though he uses constant topical therapy, his conditions never went away. Under the applicable Diagnostic Code, an increased, 10 percent rating would only be warranted if the Veteran's skin condition covered at least 5 percent of his body, if it covered 5 percent of his exposed area, or if it required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 38 C.F.R. § 4.118, Diagnostic Code 7806. The evidence shows that he meets none of these criteria. The Veteran's skin conditions of the feet affect less than 5 percent of his body, and it does not affect an exposed area. Though the Veteran uses constant topical therapy, he has not been prescribed intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Further, as his conditions have not resulted in scarring, rating the Veteran under the Diagnostic Codes for scarring would not be appropriate and would not result in a compensable rating. The Veteran's disability is not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2012). The applicable rating criteria here are adequate to evaluate the Veteran's disability. The evidence shows that the Veteran's service-connected skin disabilities require constant topical therapy, but that they affect a small portion of his total body area and that they do not require systemic therapy. Each of these symptoms is considered by the Diagnostic Code under which his disability has been rated. There is no evidence of marked interference with employment or frequent hospitalizations. The Veteran's symptoms are provided for in the applicable rating criteria. As the first threshold is not met the Board's inquiry is ended. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The preponderance of the evidence is against the claim for a compensable initial rating for skin disabilities of the feet; there is no doubt to be resolved; and a compensable initial rating for the Veteran's skin disabilities of the feet is not warranted. ORDER Entitlement to a compensable initial rating for bilateral tinea pedis and gryphosis/onychomycosis status post excision of right great toenail and left 4th/5th toenail is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs