Citation Nr: 1314600 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-19 034A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a compensable evaluation for dermatophytosis of the bilateral feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from December 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the appellant filed the claim for an increased rating for his service-connected foot condition in May 2007. The RO granted service connection for dermatophytosis, bilateral foot, in a June 2006 rating decision. Thus, the increased rating claim was received within one year of the rating decision. However, the appellant did not express disagreement with the June 2006 rating decision. He stated that he wished to "reopen" his claim for increased compensation. Thus, the Board does not construe the claim as a notice of disagreement with the June 2006 rating decision. 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). FINDING OF FACT Dermatophytosis of the bilateral feet affects no more than 4 percent of the appellant's entire body and zero percent of exposed areas; systemic therapy was not required at any point during the appeal period. CONCLUSION OF LAW The criteria for a compensable evaluation for dermatophytosis of the bilateral feet have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7813-7806 (2008); 38 C.F.R. § 4.1, 4.7, 4.118, Diagnostic Codes 7813-7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which 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 the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Appropriate notice was provided in a June 2007 letter. The claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in June 2007 and March 2011. Two addendums to the March 2011 VA examination were obtained in April 2011 and June 2011. The examinations are adequate because they are based on a thorough examination, a description of the appellant's pertinent medical history, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations and addendum opinions in this case are adequate upon which to base a decision. II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was granted for dermatophytosis, bilateral foot, by a June 2006 rating decision, with a noncompensable rating assigned effective October 20, 2003. The appellant's claim for an increased evaluation was received by the RO on May 23, 2007. As such, the rating period on appeal is May 23, 2006. 38 C.F.R. § 3.400(o)(2). The appellant's dermatophytosis is rated under 38 C.F.R. § 4.118, Diagnostic Code 7813-7806. Diagnostic Code 7813 provides that dermatophytosis should be rated as disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Code's 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. As discussed below, dermatitis is the predominant disability. Diagnostic Code 7800, for disfigurement of the head, face or neck, is not applicable because the service-connected skin condition affects the Veteran's feet. As discussed below, the evidence does not demonstrate that the appellant's feet have scars due to the service-connected condition. Thus, Diagnostic Codes 7801 to 7805 are not applicable. Diagnostic Code 7806 provides that a 60 percent rating is warranted for dermatitis or eczema involving 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. If the disability involves 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, a 30 percent evaluation is to be assigned. A 10 percent rating is for assignment where 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 is affected, or intermittent systemic therapy has been required, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period. Where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected, and no more than topical therapy has been required during the past 12-month period, a zero percent rating is appropriate. 38 C.F.R. § 4.118, Diagnostic Code 7806. 38 C.F.R. § 4.118 was amended during the pendency of this appeal. 73 Fed. Reg. 54,708 - 54,712 (October 23, 2008). The regulatory changes apply to applications received by VA on or after October 23, 2008, or if the veteran request review under the revised rating criteria. The appellant's claim for benefits was received by VA in May 2007. Although he did not explicitly request review under the revised diagnostic criteria, he did request a review of his disability rating when he appealed the denial of a claim for increase. The Board has an independent obligation to consider all "potentially applicable" provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered the revised criteria. Pertinent to this appeal, however, the regulatory amendment did not change the rating criteria for Diagnostic Code 7806. III. Analysis The appellant contends that he is entitled to a compensable evaluation for service-connected dermatophytosis. For the reasons that follow, the Board finds that a higher rating is not warranted. A July 2006 private treatment record from B.A.L., DPM, reflects that the appellant was seen for painful fungus toenails and a rash on both feet. He reported that his infected toenails were causing pain in shoes and marked difficulty walking. Private treatment records from July 2006 through December 2007 indicate that on examination, the appellant ambulated with a crutch. On examination, there was no hair growth on the toes. Skin texture of both feet was dry, fragile and thin. There was no skin rash, subcutaneous nodules, lesions or ulcers observed. Toenails 1-5 bilaterally were ragged, hypertrophic, brittle, yellow-discolored, painful, and long. Infected toenails were causing irritation to surrounding skin. The impression was dermatophytosis. An antifungal solution was applied to the toenails. The July 2006 private treatment record reflects that the appellant had a plantar tinea infection bilaterally. An October 2006 private treatment record indicates that the appellant did not take Lamisil. The appellant's skin was evaluated at a VA examination in June 2007. He reported that over the years, he had used a variety of topical medication, but no oral medications or surgery. The appellant's chief complaint was burning and pruritus. These symptoms were worse during wet weather. He was currently being treated with a topical cream provided by the Dorn VAMC pharmacy. The VA examiner noted that his medical records noted that it was Naftifine HCL 1% cream. When asked how the condition affected his activities of daily living, the appellant complained of the intense pruritus. The appellant had scaling on the feet and, in particular, on the soles of the feet. He had mycotic toenails. He did not have maceration of the skin in the webbed spaces. The appellant had diagnoses of extensive tinea pedis and onychomycosis. The VA examiner estimated that this involved approximately 4 percent of total body skin surface area and 0 percent of exposed skin. A December 2007 letter from the Foot Clinic of South Carolina reflects that the appellant had been seen in that office from July 2006 for onychomycosis and tinea pedis. His condition had not changed significantly during that time period. The appellant was evaluated at a VA examination in March 2011. The VA examiner noted that the appellant described the dermatophytosis as an intermittent pruritus and rash associated with warmer weather. The appellant reported that he had applied moisturizing cream daily for the past 12 months. The treatment was topical and neither a corticosteroid nor an immunosuppressive. There were no side effects of treatment. The appellant reported that he had widespread joint pains daily. He had a history of bilateral knee and hip replacements. He had difficulty with ambulation and relied on a cane or walker within his home and usually used a walker for community ambulation. On examination, all toenails were dystrophic, thick, yellow and brittle. The diagnosis was dermatophytosis. The VA examiner stated that the dermatophytosis did not likely have a significant effect on the appellant's ability to work in a physical or sedentary setting. In an April 2011 addendum opinion, the VA examiner stated that a review of the appellant's claims file showed no recent private treatment records with no documented recent treatment or dermatophytosis or foot problems. In a June 2011 VA addendum opinion, the March 2011 VA examiner stated that involvement of the dermatophytosis involved only the toe nails. Each toenail on both feet was involved. They were dystrophic, thickened and somewhat brittle with yellowish discoloration. The percentage exposed was none and the total body surface area was less than 5 percent. A February 2012 VA treatment record indicates the appellant's toenails were trimmed. The record reflects that he had thick, overgrown, discolored nails. The skin on the bilateral feet was intact without ulcerations. A June 2012 VA treatment record reflects that the appellant was seen for the debridement and treatment of dystrophic toenails. The appellant's feet were soaked in warm soapy water and his nails were trimmed. No breaks in skin integrity were noted. The appellant is competent to report symptoms capable of lay observation, such as symptoms of fungal toenails. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the June 2009 substantive appeal, the appellant stated that he had pain on manipulation and use of his feet, red skin that turned pale and swollen, numbness and burning pain, leg cramps, and a slow and absent pulse in his feet. He stated that he had developed severe callosities, blisters and ulcers on his feet, as a direct result of the diagnosis of trench foot upon his discharge from service. He also noted that the examiner failed to mention the valgus deformity that was present on his feet. The appellant is service-connected for dermatophytosis of the feet. Service connection for foot disabilities, to include valgus deformities, was denied in a December 2012 rating decision. There is no evidence of record indicating that the appellant's claimed symptoms of regarding numbness, burning pain, leg cramps, and a slow and absent pulse on his feet are related to his service-connected skin disability. Although the appellant has asserted that he has developed severe callosities, blisters and ulcers on his feet, the VA examinations and medical evidence of record during the period on appeal do not indicate that he had such symptoms in his feet. The June 2007 VA examination report indicated the appellant had scaling on the soles of the feet and mycotic toenails, but not that he had callosities, blisters or ulcers. Private treatment records from July 2006 through December 2007 indicated that there was no skin rash, subcutaneous, nodules, lesions or ulcers observed. The March 2011 VA examination report reflects that the appellant described having intermittent pruritus and a rash associated with warmer weather. The examination, the toenails were dystrophic, thick, yellow and brittle. As the appellant's statements are contradicted by the medical evidence of record, the Board finds the appellant's statements to be less than credible. Therefore, the Board finds the VA examination reports, VA treatment records and private treatment records of record to be more probative. The evidence of record, including the VA examination reports clearly demonstrate that the appellant's dermatophytosis of the feet affects less than 5 percent of his total body area. The June 2007 VA examination report reflects that the condition involved approximately 4 percent of the total body skin surface and 0 percent of exposed skin. The March 2011 VA examiner found that the condition involved 0 percent of exposed skin and less than 5 percent of the total body surface area. The evidence of record also reflects that the appellant did not have more than topical therapy for the service-connected dermatophytosis. The June 2007 VA examination report indicates the appellant's skin condition had been treated with a variety of topical medication, but no oral medications. At that time, the condition was treated with Naftifine HCL 1% cream. The private treatment records from July 2006 to December 2007 indicated that an antifungal solution was applied to the toenails. The October 2006 private treatment record noted that the appellant did not take Lamisil. At the March 2011 VA examination, the appellant reported that he had applied moisturizing cream daily for the past 12 months. The treatment was topical and neither a corticosteroid nor an immunosuppressive. Based on the evidence of record, the Board finds the evidence does not demonstrate that the dermatophytosis has affected 5 percent or more of the total body area or that it has required corticosteroid or immunosuppressive therapy. Accordingly, a compensable rating under Diagnostic Code 7813-7806 is not warranted at any time during the rating period. The Board has considered other potentially applicable rating codes for dermatophytosis. However, as noted above, scarring is not shown in the evidence of record. Thus, Diagnostic Codes 7801-7805 are not applicable. The service-connected disability does not involve the head, face or neck. Therefore, Diagnostic Code 7800 is not applicable. The evidence does not reflect that the appellant had bullous disorders, exfoliative dermatitis, or skin neoplasms. Thus, Diagnostic Codes 7815, 7817, 7818 and 7819 are not applicable. The Board finds that there are no other applicable Diagnostic Codes that would apply to the appellant's service-connected skin disability and result in a higher rating. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the low back disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's dermatophytosis of the bilateral feet are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the disability is primarily manifested by thick, overgrown, discolored nails and scaling of the feet. The applicable diagnostic codes used to rate the appellant's disability provide for ratings based on the percentage of skin affected by these symptoms and the symptoms are considered in applying the relevant criteria in the rating schedule. The July 2006 private treatment record reflects that the appellant reported that his infected toenails were causing pain in shoes and marked difficulty walking. However, the March 2011 VA examination report indicates the appellant had widespread joint pain and a history of bilateral knee and hip replacements. Thus, the evidence does not demonstrate that the condition affected the appellant's ability to walk. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the appellant was granted TDIU effective October 29, 2010. Prior to the date, he did not argue, and the record does not otherwise reflect that his service-connected dermatophytosis rendered him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised by the record. In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Board finds that a compensable evaluation for service-connected dermatophytosis of the bilateral feet is not warranted. ORDER Entitlement to a compensable evaluation for dermatophytosis of the bilateral feet denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs