Citation Nr: 1313787 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-42 143 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial, compensable rating for service-connected tinea pedis of the bilateral hands. 2. Entitlement to an initial, compensable rating for service-connected tinea pedis of the bilateral feet. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO granted service connection and assigned initial, noncompensable ratings for tinea pedis of the bilateral hands and tinea pedis of the bilateral feet ; each from December 5, 2007. In February 2009, the Veteran filed a notice of disagreement (NOD) with the initial ratings assigned. In October 2009, the RO issued a statement of the case (SOC) , and, in October 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). Because the appeal involves disagreement with the initial ratings assigned following the award of service connection for tinea pedis of the bilateral hands and tinea pedis of the bilateral feet, the Board has characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The ratings for the Veteran's service-connected tinea pedis of the bilateral hands and bilateral feet have been assigned under 38 C.F.R. §4.118, Diagnostic Code 7813; which provides that tinea pedis is to be rated 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 predominant disability. Here, the disabilities have been rated pursuant to the criteria of Diagnostic Code 7806; which provides for ratings based on the percentage of the body involved, as well as the percentage of the exposed areas affected, as well as whether and how frequent systemic therapy such as corticosteroids or other immunosuppressive drugs is required during a 12-month period. The Veteran was afforded a VA examination in March 2008; the VA examiner found that there was no major involvement and thus, no percentage of the surface area could be given. However, in the March 2013 Informal Hearing Presentation, the Veteran's representative asserted that the March 2008 VA examiner did not provide a percentage of the surface area affected. and that the Veteran's tinea pedis has increased in severity since the March 2008 VA examination. She stated that the Veteran was still under treatment for his fungus and that there is evidence that the Veteran's hands and feet were manifested by cracked and dry skin. As the record does not include sufficient medical findings to evaluate the disability, and given the representative's assertions of worsening since the Veteran last underwent VA evaluation for the disability in March 2008, the Board finds that a contemporaneous VA examination to obtain findings responsive to the relevant rating criteria are needed to evaluate each disability. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). See also; Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Such findings-preferably, obtained during a timeframe when the skin problems are active-should include comment as to the percentage of the entire body and percentage of the area exposed, and whether the Veteran is on corticosteroids or other immunosuppressive drugs and for how long. See 38 C.F.R. §4.118, Diagnostic Code 7806. Hence, the RO should arrange for the Veteran to undergo VA dermatology examination, by an appropriate medical professional, at a VA medical facility-preferably, during a time frame when the skin problems are active. The Veteran is hereby advised that, failure to report to the scheduled examination, without good cause, may result in denial of the claims for higher initial ratings (as these claims, emanating from claims for and award for service connection will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, , to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding VA medical records. As regards VA records, review of the Virtual VA paperless claims processing system reveals VA treatment records from the Memphis VA Medical Center (VAMC) and from Covington Community Based Outpatient Clinic (CBOC) However, those records do not include dermatology treatment notes and the most recent note is dated September 28, 2009. Hence, outstanding pertinent records from these facilities may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding pertinent records of VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent outstanding, private records. Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating each claim, the RO should consider and discuss whether "staged rating" (assignment of different rating for distinct periods of time, based on the facts found), pursuant to Fenderson (cited above), is warranted. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran's tinea pedis from the Memphis VAMC and the Covington CBOC. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent outstanding, private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA dermatology examination, by an appropriate medical professional at a VA medical facility, for evaluation of his tinea pedis of the bilateral hands and bilateral feet. If at all possible, the examination should take place at a time when the Veteran's skin problems are active. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all findings made available to the requesting individual prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent evidence, the examiner should render specific findings as to the characteristics of the Veteran's tinea pedis of the hands, and of his feet pedis: for each, the examiner should specify the percentage of the entire body and percentage of the area(s) exposed , as well as whether, and how frequent, the disability requires the use of corticosteroids or other immunosuppressive drugs during a 12-month period. The examiner should clearly indicate whether the claims file reflects any change(s) in the severity of tinea pedis of either the hands or feet since December 2007; and, if so, the approximate date(s) of the change(s), as well as the level of severity of the disability at each date. The examiner should set forth all examination findings, along with complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development action deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority (to include consideration of whether staged rating, pursuant to Fenderson (cited above) is warranted). 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).