Citation Nr: 1318080 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-25 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a higher rating for a skin disorder, involving tinea pedis, onychomycosis, bilateral stasis dermatitis and eczematous dermatitis, initially evaluated as noncompensable (0 percent) from August 20, 2007 to August 2, 2009, and as 10 percent disabling since August 3, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION 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 & Supp. 2012). The Veteran served on active duty from October 1945 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2009, the RO granted service connection for tinea pedis, onychomycosis, bilateral stasis dermatitis and eczematous dermatitis and assigned a noncompensable (0 percent) rating, effective from August 20, 2007. In January 2010, the RO granted an increased evaluation to 10 percent, effective August 3, 2009. FINDINGS OF FACT 1. From August 20, 2007 to August 2, 2009, the Veteran's dermatological disorder involved at least 5 percent, though less than 20 percent, of the entire body or exposed skin areas affected. 2. Since August 3, 2009, the affected area has expanded to include approximately 40 percent of the entire body surface. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish an initial 10 percent evaluation for a dermatological disorder from August 20, 2007 to August 2, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2012). 2. The criteria are met to establish a 30 percent evaluation for a dermatological disorder from August 3, 2009 onward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the development of a claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2012). In regard to the claim on appeal for higher initial evaluation for service-connected disability, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for a dermatological disorder has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. In any event, the RO has provided September 2009 and April 2010 notice correspondence that directly addressed the evidentiary requirements to substantiate this claim on appeal. The RO has complied with the duty to assist the Veteran through obtaining VA outpatient treatment records. In furtherance of this claim, the Veteran also provided copies of private treatment records and personal statements. He has not requested a hearing in this matter. There is no indication of any further available evidence or information which has not already been obtained. The Veteran has undergone VA Compensation and Pension examinations, most recently in April 2010. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The Veteran's representative stated in January 2013 that the Veteran's most recent VA examination is too old to reflect the current clinical picture of the Veteran's condition. While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination or other evidence of worsening. VAOPGCPREC 11-95 (1995). In this case, the record reflects worsening of the Veteran's skin disorder in July 2010, approximately three months after his last VA examination. Specifically, a VA outpatient treatment record dated in July 2010 shows the Veteran's condition had deteriorated. However, the information provided in this treatment note is sufficient upon which to rate the Veteran's skin disability and serves as the basis for the assignment of an increased rating. Therefore, the Board finds that remand for a new examination is not warranted in this case. The record includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of his disability. In Fenderson, the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. As here, in the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, at 125-26. The service-connected disability before the Board for evaluative consideration is that of a dermatological disorder, characterized by tinea pedis, onychomycosis, bilateral stasis dermatitis and eczematous dermatitis. Thus, far the RO has rated this condition as noncompensable from August 20, 2007 to August 2, 2009, and as 10 percent disabling since August 3, 2009 under provisions of 38 C.F.R. § 4.118, Diagnostic Code 7813-7806, for dermatophytosis, evaluated according to the criteria for dermatitis or eczema. Under Diagnostic Code 7806, for dermatitis or eczema, where less than 5 percent of the entire body or exposed body areas are affected, and no more than topical therapy is required during the past 12-month period, a 0 percent rating is assigned. In order for a 10 percent rating to be assigned, the evidence must show that at least 5 percent, but less than 20 percent, of the entire body or the exposed areas are affected, or it must show that intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. Where 20 to 40 percent of the entire body or exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is assigned. Where more than 40 percent of the entire body or exposed areas are affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period, a 60 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. As a preliminary rating consideration, the Board recognizes that the service-connected dermatological disorder under review is broad in scope, encompassing many individual conditions; however, this is entirely consistent with the generalized characterization of disability as it was originally granted. To the extent one or more of the individual conditions may actually be symptomatic of peripheral vascular disease (i.e., stasis dermatitis), which itself has not been adjudicated service-connected, the competent evidence nonetheless does not provide any meaningful opportunity to distinguish between the impairment from peripheral vascular disease and that due to the service-connected skin disability, under which circumstances all symptomatology is presumed due to service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where it is not possible to separate the effects of a service-connected disability from any nonservice-connected conditions by competent opinion, all symptoms must be attributed to the service-connected disability). See also, Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). Evidence of record since the August 20, 2007 effective date of service connection for a skin disorder indicates an April 2008 private dermatological consult for what was diagnosed as tinea pedis, with the prescription of antifungal pills and antifungal skin cream. Also observed at that time was the Veteran had eczematous dermatitis, for which he apparently received a steroid injection. In his April 2008 correspondence, Dr. R.F.B., private physician, indicated having been the treating physician during the above office visiting, noting that the Veteran had onychomycosis of all the toenails approximately 50 percent. As a result, the Veteran was placed on Lamisil pills. He was also noted to have had eczema and stasis dermatitis of the foot and lower calf, for which the treatment consisted of bland moisturizers, topical steroids and avoidance of irritating over-the-counter preparations. According to the physician, this would bring an improvement in the nails and skin, but because of the Veteran's stasis issues, his legs would probably not return to normal. The Veteran underwent VA Compensation and Pension examination in October 2009, at which time the skin condition was identified as tinea pedis and onychomycosis, bilateral feet; and dermatitis of both the legs and feet. The Veteran described the skin condition as constant, and manifested by occasional slight bleeding. The Veteran indicated he was taking an unknown topical drug, daily, as needed, for treatment. It was noted that this was a corticosteroid. There were no other symptoms noted from the skin condition. He described urticaria (hives) varying from daily to once a week. The skin condition reportedly responded well to treatment. The physical examination identified dermatitis located on both the legs and feet, involving 0 percent of the exposed area, and 9 percent of the entire body. The condition was estimated to have a mild to moderate effect on daily activities. There were no related scars. Upon VA re-examination in April 2010, the Veteran described his dermatological condition as constant, and subject to exacerbations with poor circulation and with extra working. The Veteran identified taking antifungal cream, hydrocortisone cream, and a moisturizing lotion, all on a daily basis. He stated that he used hydrocortisone cream three times a day. It was noted that this was a corticosteroid. The Veteran described itching, urticarial, and primary cutaneous vasculitis. There was dermatitis in both lower extremities affecting 18 percent of the exposed skin surface, and 5 percent of the entire body. There was no related scarring. The diagnosis was tinea pedis; onychomycosis; bilateral stasis dermatitis; eczematous dermatitis. Thereafter, VA outpatient treatment records indicate a July 2010 general practitioner's consult which observed that the Veteran's condition presented eczema and dermatitis of both the arms and face, and the Veteran's condition had deteriorated. There was discoloration of the skin of both extremities with scaling. According to this physician, the Veteran's eczema and dermatitis in both the arms and face represented about 40 percent of the body covered by the condition. Having reviewed the foregoing, the Board will grant an increase in the overall compensation scheme for the Veteran's service-connected dermatological disability. For the initial timeframe from the August 20, 2007 effective date of service connection up until August 2, 2009, the Board will increase from 0 to 10 percent the evaluation for a skin disorder, in light of the Veteran's documented onychomycosis of the bilateral feet, as well as eczema and stasis dermatitis of the foot and lower calf. While there were no preliminary VA examination findings available upon which to calculate the likely percentage of exposed skin surface area, pursuant to the applicable rating criteria, and the Board's review is constrained by the record before it, there is sufficient likelihood that at least 5 percent of the entire body or the exposed areas were affected by service-connected disability, and therefore, enough to substantiate an initial 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7806. In so finding, the Board has also taken into account the photographic evidence available from on or around April 2008 pertaining to a depiction of a skin condition of the lower extremities, substantiating this extent of service-connected disability. Thus, a 10 percent evaluation is granted from August 20, 2007 to August 2, 2009. This initial increase having been established, the record further supports an increase to a 30 percent evaluation effective August 3, 2009. The Board premises this determination primarily upon the July 2010 VA physician's treatment notation that roughly 40 percent of the exposed skin surface was immediately affected by service-connected disability, which directly warrants a 30 percent rating under Diagnostic Code 7806. Whereas the Board is awarding this higher 30 percent rating up to a year before the July 2010 VA treatment note in question, this reflects the fact that as of an April 2010 VA examination the condition was already at 18 percent of exposed skin surface (just short of what would literally meet the criteria for a 30 percent rating under Diagnostic Code 7806). Even though the condition may have been even less prevalent on VA examination in October 2009, the Veteran's skin disability has always been known to fluctuate in severity over time. Resolving reasonable doubt in the Veteran's favor on the material issue of severity of service-connected disability, the Board will assign a 30 percent evaluation for the entire time period in question, from August 3, 2009 onwards. See 38 C.F.R. § 4.3. The aforementioned basis for increased ratings for a skin disorder having been elucidated, the Board does not immediately perceive any grounds for assignment of a further increased evaluation during the rating timeframes under consideration. Applying the provisions of the rating criteria found at Diagnostic Code 7806 during both the time periods for which 10 percent, and 30 percent evaluations respectively have been assigned, for reasons already cited, the approximate percentage of skin surface (and/or exposed body surface) have not exceeded the lowest threshold of what would objectively warranted the next higher evaluation. In addition, whereas the Veteran has been noted to utilize corticosteroid therapy, the overwhelming majority of this course of therapy has involved steroidal creams (i.e., topical therapy), and not corticosteroids administered systemically (i.e., systemic therapy) as would be crucial to establish entitlement to a greater level of service-connected impairment. The Board acknowledges that on one occasion in August 2008, the Veteran was observed to have recently received a steroid injection for his dermatitis, thereby qualifying as systemic administration. However, there is no corresponding notation as to the duration and extent of systemic therapy. At the very least, the evidence does not clearly establish the requirements were met for the next higher rating of 30 percent (at that point in time, prior to the eventual increase to 30 percent effective August 3, 2009) via evidence of systemic corticosteroidal therapy for a total duration of six weeks or more during the previous 12-month period. See Diagnostic Code 7806. The Board's review is constrained by the record before it. Accordingly, no higher ratings than the increased compensation scheme above are warranted in this case. Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's dermatological disorder (and all associated components) presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon affected skin surface area and treatment modalities fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. To the extent the Veteran has distinctly identifiable symptoms such as itching and urticaria, the Board recognizes that these are inherently difficulty to quantify, nor for that matter has the Veteran described them in terms of uniquely incapacitating or limiting manifestations. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is granting in part the claim for increased rating for a dermatological disorder. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claims under review. The preponderance of the evidence substantiates this outcome, though no higher level of disability, and the benefit-of-the-doubt doctrine applies to the extent indicated. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial 10 percent evaluation for a skin disorder, involving tinea pedis, onychomycosis, bilateral stasis dermatitis and eczematous dermatitis, from August 20, 2007 to August 2, 2009, is granted, subject to the law and regulations governing the payment of VA compensation benefits. A 30 percent evaluation for a skin disorder, involving tinea pedis, onychomycosis, bilateral stasis dermatitis and eczematous dermatitis, from August 3, 2009 onwards, is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs