Citation Nr: 1318836 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-00 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for tinea cruris and tinea pedis with onychomycosis for the period prior to April 9, 2012. 2. Entitlement to an initial evaluation in excess of 10 percent for tinea cruris and tinea pedis with onychomycosis for the period from April 9, 2012. 3. Entitlement to service connection for hypertension, to include as secondary to skin condition, ulcer disease, or migraines. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 1991. This matter has come before the Board of Veterans' Appeals (Board) on appeal from August 2003 and August 2004 rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The August 2003 rating decision assigned a 10 percent evaluation for tinea pedis, effective October 7, 1997. The August 2004 rating decision denied service connection for hypertension. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2010. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In May 2010, the Board remanded this case for further development. In a March 2012 decision, the Board, dismissed the claim of service connection for hypertension and remanded the skin disability claim. In May 2012, the Board vacated that dismissal and again remanded this case for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of entitlement to service connection for hypertension and an increased rating for tinea cruris and tinea pedis with onychomycosis for the period from April 9, 2012 are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to April 9, 2012, tinea cruris and tinea pedis with onychomycosis was characterized by recurring itchy rashes covering less than 20 percent of the entire body and less than five percent of the exposed area. It was not characterized by exudation, extensive lesions, or marked disfigurement and did not require systemic therapy lasting six weeks or more. CONCLUSION OF LAW Prior to April 9, 2012, the criteria for a disability rating in excess of 10 percent for tinea cruris and tinea pedis with onychomycosis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, DC 7813 (2001); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813-7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's skin disability claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2010 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's May 2010 remand, VA associated additional VA treatment records with the file and provided the Veteran with a medical examination in June 2010. In compliance with the Board's March 2012 remand, VA associated the outside medical opinion with the claims folder. VA then obtained an addendum medical opinion for the June 2010 examination. Together this examination and March 2012 addendum contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the May 2010 and March 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for a skin disability in a July 2003 Board decision based on the Veteran's lay history of skin rashes since service and a diagnosis of tinea pedis. The Board decision was effectuated by an August 2003 rating decision that awarded a 10 percent evaluation for tinea pedis, effective October 7, 1997. The Veteran has appealed this initial rating. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 125-26 (1999). During the pendency of the Veteran's appeal, VA promulgated new regulations for the evaluation of diseases of the skin, effective August 30, 2002. See 67 Fed. Reg. 49590 (July 31, 2002). The Office of the General Counsel (OGC) previously determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-2000. The Board, in giving the Veteran all due consideration, will consider applying the old criteria prospectively also. Prior to August 30, 2002, dermatophytosis, including tinea pedis and tinea cruris, were rated under the criteria for eczema. 38 C.F.R. § 4.118, DC 7813 (2001). Eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area, warrants a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7806 (2001). If it is accompanied by exudation or constant itching, extensive lesions, or marked disfigurement, a 30 percent evaluation is for assignment. Id. Eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or if exceptionally repugnant warrants a 50 percent evaluation. Id. Under the regulations for the evaluation of skin disabilities, effective on August 30, 2002, dermatophytosis, including tinea cruris and tinea pedis, is evaluated under Diagnostic Code 7813. 38 C.F.R. § 4.118 (2003). This code instructs raters to rate under the criteria for disfigurement of the head, face, or neck (DC 7800); scars (DC's 7801-7805); or dermatitis (DC 7806), depending upon the predominant disability. As the Veteran's rashes have not been associated with scarring, the Board will evaluate this disability under the criteria for dermatitis. Dermatitis or eczema of less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period will be rated at zero percent. 38 C.F.R. § 4.118, Diagnostic Code 7806. Dermatitis or eczema with 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 requiring 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 will be rated 10 percent. Id. Dermatitis or eczema of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period will be rated 30 percent. Id. Dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or requiring constant or near-constant systemic therapy such as corticosteroid or other immunosuppressive drugs during the past 12-month period will be rated 60 percent. Id. VA revised the criteria for rating skin disorders again on October 23, 2008; however, this new regulation relates to scars and specifically applies only to claims received on or after October 23, 2008. 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran has reported reoccurring rashes, not resultant scarring. Accordingly, these revisions do not apply to the present case. Id. Thus the following discussion will address the Veteran's symptoms in light of the relevant regulations prior to and as of August 30, 2002. During the period at issue, the Veteran has reported recurring rashes on the neck, legs, chest, arms, back, feet, and groin. He is currently service connected for tinea cruris and tinea pedis with onychomycosis. The June 2010 examiner specifically found that the Veteran's tinea versicolor was not a continuation of the skin condition diagnosed in service. The medical evidence of record confirms the Veteran's complaints of recurring rashes, but contradicts his lay statements of a constant itchy rash on his feet as the medical evidence of record shows periods without foot rash. Compare September 2006 statement with March 1999 VA treatment record, private treatment record dated September 2006 (rash on hands and groin, but feet were clear). A November 2006 record noted that the Veteran's rash and itching symptoms had resolved with treatment. Moreover, the Veteran specifically denied any rash in February 2009, April 2009, and June 2009. The statements made for medical treatment purposes are more probative than the Veteran's current assertions of constant itching. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Thus, the Board finds the Veteran's assertions of a constant foot rash not credible and instead finds evidence of frequently recurring rashes. The Veteran has treated his rashes and associated onychomycosis variously with antibiotic cream, antifungal cream and pills, antihistamines, and dandruff shampoo. See generally, VA treatment records; September 2003 Notice of Disagreement. The Board notes that various topical creams have been used to treat the Veteran's rashes. This however is not akin to a course of systemic therapy. The record does note systemic therapy in September 2006 in the form of a Medrol dose pack. The VA examiner noted in his March 2013 addendum opinion that this medication is a brief course of treatment that usually lasts less than 10 days. The record does not indicate any course of systemic therapy lasting six weeks or more within a twelve-month period. The June 2010 VA examiner noted significant maceration between the toe web spaces and noted that the affected area was less than two percent of the total body area and was not exposed. The examiner also noted two macules of tinea versicolor on the posterior trapezius (upper back), which represented less than one percent of the total body area and was not exposed. That examiner found that the Veteran's tinea versicolor was not a continuation of the skin condition diagnosed in service and that there was no evidence of tinea cruris, onychomycosis, or other skin lesions at the time of the examination. The record does not contain evidence of systemic or nervous manifestations attributable to the Veteran's skin disability. While the Veteran has submitted charts estimating the percentage of total body area for specific body parts, these charts are not useful to the Board's determination as they do not address the actual area affected by this disability. Instead, the Veteran is asking that the Board accept, for example, a record of a rash on his feet without further description as an indication that the entire surface area of the foot is symptomatic despite other more specific records that describe a foot rash affecting only the area between his toes. Under the regulations in affect prior to August 30, 2002, the Veteran's skin disability most nearly approximates the criteria for the existing 10 percent evaluation. The Veteran's skin disability is characterized by recurring, but not constant, itchy rashes without exudation, extensive lesions, or marked disfigurement. These symptoms warrant no more than a 10 percent evaluation under the old Diagnostic Code 7813. See 38 C.F.R. § 4.118 (2001). A higher evaluation would require exudation, constant itching, extensive lesions, marked disfigurement, ulceration, excessive exfoliation, crusting, or systemic or nervous manifestations. See 38 C.F.R. § 4.118, Diagnostic Code 7813 (2001). None of these additional symptoms are shown by the competent and credible evidence of record. As such, an evaluation higher than 10 percent is not warranted under the prior version of the rating criteria. Likewise, under the regulations in affect as of August 30, 2002, the Veteran's skin disability most nearly approximates the criteria for the existing 10 percent evaluation. Again, the Veteran's skin disability is characterized by itchy rashes covering less than 20 percent of the entire body and less than five percent of the exposed area, without scarring or disfigurement, which warrants a 10 percent evaluation under the current Diagnostic Code 7813. See 38 C.F.R. § 4.118 (2012). This skin disability has been treated with topical creams, not systemic therapy lasting six weeks or more. A higher evaluation would require that a larger percentage of the total body area or of the exposed areas be affected, or that this disability be treated systemic therapy for a total duration of six weeks or more. See 38 C.F.R. § 4.118, Diagnostic Code 7813 (2012). Again, none of these additional symptoms are shown by the competent and credible evidence of record. As such, an evaluation higher than 10 percent is not warranted under the current version of the rating criteria. Thus, under both versions of the regulations, the preponderance of the evidence is against a rating higher than 10 percent for the Veteran's tinea cruris and tinea pedis with onychomycosis. 38 C.F.R. § 4.7. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as rashes affecting a larger portion of the body and rashes treated with systemic therapy, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. The Board notes that the Veteran has reported employment problems due to his disability in that he is not able to wear the steel toed boots that were required for work as a forklift operator and therefore he was demoted to a lower paying job. Likewise, the Veteran has reported additional expense associated with his need to replace his socks, underwear, t-shirts, and pillowcases more frequently. See e.g., May 2011 statement. While the Board is sympathetic to these complaints, these types of employment limitations and additional expenses are consistent with the Veteran's current level of disability evaluation. They do not rise to the level of an exceptional or unusual disability picture that would warrant referral for an extraschedular evaluation. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his tinea cruris and tinea pedis with onychomycosis. See 38 C.F.R. § 4.16. In the event that there is anything in the record that implicitly raises a claim of TDIU, review of the overall evidence does not reflect that the Veteran's service-connected tinea cruris and tinea pedis with onychomycosis alone precludes employment. During the appeals period, the Veteran has stated that he was unemployed due to being the victim of a home invasion. See June 2007 statement. There is no suggestion in the record that he is unemployable due to his tinea cruris and tinea pedis with onychomycosis. Thus, entitlement to a TDIU due to his service-connected tinea cruris and tinea pedis with onychomycosis is not warranted. ORDER For the period prior to April 9, 2012, an initial evaluation in excess of 10 percent for tinea cruris and tinea pedis with onychomycosis is denied. REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. In such situations, the Board must again remand the case for compliance with the remand orders. The May 2012 Board remand instructed the AMC to reconsider the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to migraine headaches, noting that this issue was inextricably intertwined with the pending claim of service connection for migraine headaches. In this case, the record shows that the Veteran's claim of service connection for migraine headaches was ultimately successful in a December 2012 rating decision. Meanwhile, the issue of service connection for hypertension was last adjudicated in a June 2012 Supplemental Statement of the Case, six months earlier. At that time, the issue of service connection for hypertension on a secondary basis was denied in part because there was no evidence that hypertension was proximately due to or the result of a service connected disease. Naturally, as migraine headaches had not been service connected at that time, the Board must assume that a causal relationship between the two was not considered. Such a causal relationship should be considered now. The Veteran has claimed that he now receives treatment for an immunosuppressant for his skin disability. A list of prescribed medications dated April 9, 2012, included Pimecrolimus cream and Hydroxyzine tabs. It is not clear from this document what the medication was prescribed for (the Veteran has nonservice-connected skin problems also) or whether these are systemic medications to treat his service-connected tinea cruris and tinea pedis with onychomycosis. Another VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA dermatological examination to determine the extent and severity of his service-connected tinea cruris and tinea pedis with onychomycosis. All necessary testing should be included and the claims file should be made available to the examiner for review. The examiner should indicate whether the tinea cruris and tinea pedis with onychomycosis results in exudation or constant itching, extensive lesions, or marked disfigurement. The percent of the entire body and exposed areas affected by the tinea cruris and tinea pedis with onychomycosis and whether intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have been prescribed for the service-connected skin disability (the Veteran also has nonservice-connected skin disability). The April 9, 2012 medication list should be reviewed by the examiner in this respect. 2. After undertaking any additional development deemed appropriate, readjudicate the issues of entitlement to service connection for hypertension, to include as secondary to migraine headaches and an increased rating for tinea cruris and tinea pedis with onychomycosis, from April 9, 2012. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs