Citation Nr: 1319308	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  08-16 897	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased (compensable) rating for skin disability, to include tinea pedis and dermatitis.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Lindio, Counsel





INTRODUCTION

The Veteran served on active duty from July 1954 to September 1979.

This appeal to the Board of Veterans' Appeals (Board) arose from an August 2007 rating decision in which the RO granted service connection and assigned a 0 percent (noncompensable) rating for left carpal tunnel syndrome, effective August 31, 2006, as well as denied an increased (compensable) rating for tinea pedis.  In October 2007, the Veteran filed a notice of disagreement.  A statement of the case (SOC) was issued in May 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2008.

In March 2011, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.  

In February 2012, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).

In an October 2012 rating decision, the AMC granted a 10 percent disability rating for carpal tunnel syndrome, left, from May 7, 2012.  

In February 2013, the Board denied an initial, compensable rating for left carpal tunnel syndrome, prior to May 7, 2012, and a rating in excess of 10 percent for left carpal tunnel syndrome, from May 7, 2012.  As such, those claims are no longer before the Board.  Also in February 2013, the Board remanded the claim for higher rating or tinea pedis to the AMC for additional development.

The AMC has associated with the claims file additional evidence, specifically, the report of an April 2013 VA examination for an increased rating for tinea pedis, which was considered in the May 2013 supplemental SOC (SSOC).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., some VA treatment records dated from August 2006 to May 2012, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file.  However, such evidence was considered by the RO in the May 2013 SSOC.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  Pertinent to the June 2006 claim for increase, the Veteran's skin disability has not affected the head, face or neck; does not cause scars; has involved less than 5 percent of the entire body and less than 5 percent of exposed areas affected; and does not require systemic therapy.

3.  The schedular criteria are adequate to rate the disability under consideration at points pertinent to this appeal.


CONCLUSION OF LAW

The criteria for a compensable rating for skin disability, to include tinea pedis and dermatitis, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.31m 4.118, Diagnostic Codes 7813, 7806 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

A January 2007 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of a claim for increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  Further, the letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). This letter meets the Pelegrini and Dingess/Hartman content of notice requirements (as applicable), as well as the VCAA's timing of notice requirement.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records.  Also of record and considered in connection with the appeal are various written statements provided by the Veteran as well as by his representative, on his behalf.  The Board finds that no additional RO action on this claim, prior to appellate consideration is required.  

Consistent with the March 2011 Board remand, the AMC also requested that the Veteran identify his private medical providers in a March 2012 letter and the Veteran did not provide such information.  Also, the AMC associated the VA medical records from the Fayetteville VA medical center and obtained a VA examination for the claim in May 2012.   Following the February 2013 Board remand, again requested that the Veteran identify his private medical providers in an April 2013 letter and the Veteran again did not provide such information.  The AMC also provided a new VA examination in April 2013.  The Board also directed the AMC to review all the evidence of record, including the additional VA medical records associated with the VVA claims file (which it did not appear that the AMC reviewed in the October 2012 SSOC).  In the May 2013 SSOC, the AMC indicated that it had considered all the evidence of record.  

In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).   The following analysis is therefore undertaken with the possibility that "staged rating"(assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted.  

Historically, the RO granted service connection for tinea pedis in an April 1980 rating decision, and assigned an initial, noncompensable rating under the provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813, effective October 1, 1979.  The Veteran filed the current claim for increased rating in June 2006.  

In June 2007, the Veteran underwent a VA examination for the skin, which included a claims file review.  The Veteran reported that he developed a fungal infection in Vietnam and had been treated with topical medication, but indicated that her has never been able to completely rid himself of the problem.  He reported only using medication when it flared ups.  On physical examination, the June 2007 VA examiner found no skin lesions or scarring.  The examiner found no tinea pedis on examination.

A December 2007 VA medical record reflects diagnoses of tinea pedis and non-service-connected actinic keratosis.  Subsequent VA medical records generally do not document further complaints of, or treatment for, tinea pedis or dermatitis.

In August 2008, the Veteran underwent another VA examination, which included a review of the claims file, for seborrheic dermatitis.  The Veteran complained of itchy, flaking on his hands and later his neck, groin and face.  The examiner found that the Veteran had  no exposed areas (head, face neck hands) affected and less than 5 percent of his total body affected.  The examiner found no evidence of scaling, erythema or pigmentary changes to the face neck or groin, though the Veteran had xerotic hands.  Based on description, the examiner assessed seborrheic dermatitis.

In May 2012, the Veteran underwent a VA examination, which included a review of the claims file.  The Veteran complained of peeling skin of his hands and feet and reported using hand lotion.  The examiner found no scarring or disfigurement of the head, face or neck and no systemic manifestations due to skin disease.  The examiner also found no evidence of seborrheic dermatitis.  The examiner only found xerosis in some intermittent areas over the dorsum of the hands and feet.  The examiner indicated that the total body area affected was less than 5 percent and total exposed area to be less than 5 percent.  The examiner opined that the skin disability would not affect the Veteran's ability to work.

Pursuant to the last Board remand, in April 2013, the Veteran underwent yet another VA examination, which included a claims file review.  The examiner diagnosed the Veteran with dermatitis and tinea pedis.  The Veteran complained of peeling, dryness and itching of the hands and feet that developed in service.  The Veteran denied the use of fungal or steroid creams and reported that he had not seen a medical provider for his condition since his last VA examination (in May 2012).  

The April 2013 VA examiner found that the Veteran did not have any skin conditions that caused scarring or disfigurement of the head, face or neck.  The examiner also noted that the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition or treatments or other procedures.  

The April 2013 VA examiner further determined that the Veteran's dermatitis and infections of the skin covered less than five percent of his total body area and his exposed body area.

The April 2013 VA examiner explained that the Veteran's skin revealed macular erythema of the medial and lateral bilateral feet associated with peeling of the skin.  The Veteran also had very dry hands associated with mild excoriation/peeling of the palmar surface of the right hand.  However, the examiner found such skin conditions did not impact the Veteran's ability to work.  The April 2013 VA examiner further noted that, on examination, the Veteran had active tinea pedis, but was not then using a prescribed antifungal or steroid cream.  

The April 2013 VA examiner further explained that the Veteran currently has an ongoing infection associated with dry, peeling skin of the feet and hands.  Given the Veteran's in-service responsibilities as a crew member, flight engineer and mechanic, the examiner found that the Veteran more than likely came into contact with chemical agents that could disrupt exposed skin barriers leading to dermatitis.  The examiner thus found the Veteran's dermatitis to be a part of the Veteran's service-connected skin disability.  

Under Diagnostic Code (DC) 7813, dermatophytosis (including tinea pedis of feet) can be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability.  38 C.F.R. § 4.118, DC 7813.

Under the criteria of DC 7806, dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable rating.  Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; of requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12- month period warrants a 10 percent rating. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating.  Dermatitis or eczema warrants a 60 percent rating if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806.   Additionally, dermatitis can alternatively be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability.  38 C.F.R. § 4.118, DC 7806.

The Board notes that service connection had been established for skin disability, including tinea pedis (athlete's foot) and dermatitis.   None of the evidence of record indicates that he has tinea pedis or dermatitis of the head, face or neck.  As such, consideration of the rating criteria based on disfigurement of the head, face or neck (DC 7800) is not warranted.  Additionally, none of the medical evidence indicates that the Veteran has scars from his tinea pedis or dermatitis, such that consideration of diagnostic codes for scars (DC's 7801-7805) is also not warranted.  As such, the Veteran's tinea pedis and dermatitis will be considered under the criteria for DC 7806 as for dermatitis or eczema.

Under the criteria of DC 7806, a compensable rating for dermatitis is only warranted when the skin disability covers at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12- month period warrants a 10 percent rating.  Higher ratings require that the skin disability cover even greater areas of the body or more frequent treatment.  

The Veteran's skin disability does not cover 5 percent or more of the entire body; or 5 percent or more of exposed areas. The May 2011 VA examiner found, at most, xerosis in some intermittent areas over the dorsum of the hands and feet, affecting less than 5 percent of the total body area and that the total exposed area was less than 5 percent.  The April 2013 similarly found the dermatitis and tinea pedis to affecting less than 5 percent of the total body area and the total exposed area.  Additionally, the VA examiners and the Veteran himself have repeatedly reported that the Veteran does not receive medication or treatment, including systemic therapy such as corticosteroids or other immunosuppressive drugs, for his skin disability.  

Considering the pertinent facts in light of the above, the Board finds that at no point, has the Veteran's skin disability, including dermatitis and tinea pedis, warranted a compensable disability rating.  At no time during the appeal period did the Veteran's skin disability affect at least 5 percent or more of his total body area or total exposed area.  Additionally, the Veteran does not receive systemic therapy such as corticosteroids or other immunosuppressive drugs.  As such, a compensable disability rating is not warranted on any basis.  

As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms, or matters within his personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  In this case, the Veteran has complained of a skin disorder affecting the face, neck and groin area.  However, the appellant is not shown to be other than a layperson without appropriate medical training and expertise to competently render medical findings of a diagnosis of a skin disorder or the severity of the symptoms attributable to his dermatitis and tinea pedis.  Here, the Board finds probative the fact that, notwithstanding the Veteran's assertions, VA examiners and medical providers have not diagnosed the Veteran with tinea pedis or dermatitis in those claimed areas.  See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

For all the foregoing reasons, the Board finds that there is no basis for assignment of a compensable, schedular disability rating under any potentially applicable rating criteria, a finding consistent with the RO's assignment of a noncompensable rating for the Veteran's skin disability.  See 38 C.F.R. §  4.31 (providing that the rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the schedule does not provide for such a rating and the requirements for a compensable rating are not met).  

Additionally, the Board finds that there is no showing that, at any point pertinent to the June 2006 claim for increase, the Veteran's service-connected skin disability has reflected so exceptional or so unusual a picture as render inadequate the schedular criteria for rating the disability and to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (cited in the May 2008 SOC).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as 'governing norms.'  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether the claimant's disability picture requires the assignment of an extra-schedular rating.   Id. at 116.

The Board finds that schedular criteria are adequate to rate the Veteran's disability at all times pertinent to this appeal.  As noted, VA's rating schedule provides various, alternative means for evaluating skin disability, to include on the basis of current manifestations, as well as the size, location, and features of scars.  Unfortunately, as explained above, the disability under consideration simply does not meet the criteria for a compensable rating under any potentially applicable rating criteria.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  

For all the foregoing reasons, the Board finds that the Veteran has been assigned the maximum schedular rating available and that there is no circumstance under which a higher rating, to include on an extra-schedular basis, is warranted.  As such, there is no basis for staged rating of the disability, pursuant to Hart (cited above), and the claim for higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a compensable rating for the Veteran's skin disability, to include dermatitis and tinea pedis; that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

A compensable rating for skin disability, include tinea pedis and dermatitis, is denied.


____________________________________________
JACQUELINE E. MONROE  
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs