Citation Nr: 1320701 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-11 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased rating for dyshidrotic eczema, tinea cruris and tinea pedis (service-connected skin disability), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1957 and from January 1958 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO continued the 10 percent rating for tinea cruris/candidiasis. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the local RO in May 2011. A transcript of the hearing is in the file. This claim was remanded in April 2012 and April 2013 for a VA examination and for updated VA records. The Board finds there has been substantial compliance with the last remand. As the most recent VA examination provided a more up to date diagnosis, the issue has been re-characterized on the title page. 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 For the period on appeal, the service-connected skin disability affected greater than 5 percent, but less than 20 percent of the total body; affected 5 percent or less of exposed areas; and did not require systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a rating in excess of a 10 percent rating have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7806, 7813, 7820 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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. 2012); 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 re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent letters in November 2006 and February 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, the statements in support of the claim are of record, including testimony provided at a May 2011 Board 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. While the Veteran has asserted that past examinations are inadequate (see September 2007 notice of disagreement), the Board finds the May 2013 examination report to be fully adequate and explanatory for rating purposes. 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, 16 Vet. App. 183. Further, in April 2013, the Board remanded this claim for an updated VA examination report and updated VA treatment records. The Board finds that there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Court has held that the 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) (per curiam). Here, the transcript of the May 2011 Board hearing shows that the Veteran gave information regarding his claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. Neither the Veteran nor his representative has raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board has considered whether the Veteran is entitled to staged ratings. Hart, 21 Vet. App. 505. However, as will be discussed, no staged ratings are warranted by the evidence in the file. As background, in January 1977 the RO granted service connection for "skin disease variously diagnosed as tinea, now shown as blastomycetica interdigitalis" and assigned a 10 percent rating under DCs 7813-7806. Effective October 23, 2008, and during the pendency of this appeal, the rating codes of the skin changed under 38 C.F.R. § 4.118. See 38 C.F.R. § 4.118, DC 7800 (2007); 38 C.F.R. § 4.118, DC 7800 (2012). However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800-05 (2012). In the present case, the amended regulations are not applicable, since VA received the Veteran's claim in September 2006 and there has been no explicit request for consideration under the revised criteria. Accordingly, the pre-amended regulation will be applied. Under DC 7806, concerning dermatitis or eczema, a 10 percent rating requires that 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; intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 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 60 percent rating requires that more than 40 percent of the entire body or more than 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. 38 C.F.R. § 4.118, DC 7806 (2007). DC 7806 also provides for the disability to be rated as disfigurement of the head, face, or neck (DC 7800); or as scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. DCs 7801-7805 deal with large scars that appear on places other than the head, face and neck; that are unstable and painful; and other effects not rated (a catchall). Dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated under DC 7813. This DC states that such disability should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. DC 7820 addresses infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases). Such infections are also to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Within the year before the Veteran filed his claim in September 2006, a December 2005 VA primary care record showed that he was working for a food distributor once a week and had dry skin. Prior itching related to a cholesterol medication had resolved. In September 2006, the Veteran visited the VA dermatologist, who noted intermittent but recurring episodes of intense itching, usually around neck, hands, fingers, the inner aspect of the thigh and lower aspect of the legs. Examination revealed lichenification and hyperpigmentation over neck, hands, and distal aspect of legs. He also had popular/vesicular eruption over his fingers and webs. He had onychomycosis of toenails and tinea pedis. The impression was atopic dermatitis, dyshidrotic dermatitis, onychomychosis, and tinea pedis. The Veteran attended a VA examination in December 2006. He was retired. He previously owned a janitorial service and did contract work. He also for the federal government in several different capacities, including accounting. The claims file was not provided to the examiner. Regarding tinea cruris, the Veteran was given many creams and ointments to treat this disorder. He was using Ketoconazole cream and taking Paroxetine nightly for pruritic symptoms. At the time, he was mostly bothered by lesions on his hands and feet. He also had onychomycosis and tinea pedis. He occasionally had lesions on his upper thigh and groin area. A prior diagnosis of candidiasis was noted, but the Veteran could not provide any specific information about it. Examination in December 2006 revealed a hyperpigmented area with fine papules on the right upper thigh near the groin. Skin on the feet was dry and scaly between the toes and on the outer edges of the feet and plantar surface. Hands were hypopigmented at the edges with dry scaling and cracked in the web spaces. Lesions represented 3 percent of the total body area and 1 percent of the exposed body area. The impression was tinea cruris and no evidence of candidiasis on examination. Records dated in 2007 showed dry skin and an unrelated herpes zoster on an arm (see June and November 2007 primary care records). A September VA dermatology record revealed atopic dermatitis with intense pruritus over the fingers. The Veteran's dishwasher broke and he was unable to replace it; he had been washing dishes more frequently than usual. Examination revealed erythema, lichenification, healing vesicles and erosive changes over the web between the right middle and ring fingers. There was no bleeding, edema, lymphangiitis or tenderness noted. The impression was dyshidrotic dermatitis. He was given prescriptive ointments and creams. A July 2008 VA dermatology record showed a very similar history to that noted above. The examination showed lichenification and punctuate nodules of skin over the fingers and dorsal aspect of the hands. There was xerosis, hyperpigmentation and lichenification of skin over his ankles and dorsal aspects of the feet. He also had onychomychosis (also noted in an August 2008 VA podiatry record) in addition to dyshidrotic and atopic dermatitis. A July 2009 VA primary care record noted pigment changes on his hands. In February 2010, the VA dermatologist assessed: hand eczema; xerosis of the buttocks; pruritus of the groin, and tinea pedis. In August, the dermatologist questioned whether the pruritus of the forehead which was sun exposure related; sunscreen was prescribed as a therapeutic trial. The conditions noted in February were still present. A September 2011 VA primary care record noted possible tinea versicolor of the right hand. In February 2012, the dermatologist found mild eczematous changes on the scrotum and hyperpigmentation of the groin. He had maceration of the finger webs. His hand eczema was under control with post inflammatory hyperpigmentation. There was some persistent maceration and scaling between the toes but no eruption on the forehead. The assessment was much the same as before, except tinea cruris was diagnosed as well. The Veteran received an April 2012 VA examination. The current skin diagnoses included dyshidrotic eczema and taenia cruris. The examiner noted the Veteran's treatment and disability history for his skin. The skin disability did not cause scarring or disfigurement to the head, face or neck. He also did not have systemic manifestations due to skin diseases (no fever, weight loss, etc.). He was not treated with systemic corticosteroids or immunosuppressive medications, but was treated with Fluconazole, another oral medication. He also was treated with other topical medications. Physical examination revealed that eczema covered less than 5 percent of the total body area, including exposed areas. Infections of the skin were also on less than 5 percent of the total body area, with none on exposed areas. It was noted that hand eczema, mild erythema, primarily affecting the palms of hands. Tinea cruris and tinea pedis manifested as mild whitish scaling on the groins and feet. He did have some hyperhidrosis and was but was able to handle paper or tools after treatment. Skin conditions did not impact the Veteran's ability to work. The examiner noted that based on a review of the file, skin disorders have been best managed by periodic dermatology evaluation and follow up to guide therapy. A September 2012 gastrointestinal record showed physical examination revealed no rash but in August 2012 the dermatologist found pruritus, hand eczema, tinea pedis, and xerosis. In October 2012, a VA dermatologist noted the same and the assorted medications to treat each issue. He also had tinea cruris. He reported improvement, but stated the problems had not resolved. The pruritus was mostly between the legs. Also the pruritus on the forehead continued. The pruritus on the forehead started after surgery on his forehead; it was active mostly at night. Physical examination showed that lichenification on the scrotum improved but there was hyperpigmentation on the groin. He had hyperkeratosis on the knees, but no eruption on the forehead and his hand eczema resolved. In May 2013, the Veteran was examined and the claims file was reviewed. The Veteran was noted to have dyshidrotic eczema, taenia cruris and taenia pedis. The examiner noted an October 2012 VA record showing the Veteran had puritus in the groin from taenia cruris and symptoms of itching on the forehead with no skin abnormalities found on examination. The examiner noted that the Veteran's symptoms were about the same as at the 2012 VA examination and the areas involved were essentially the same. The examiner stated that his problem with hand eczema was inactive currently, but there were a few small areas of residual depigmentation. The problem of taenia cruris was still present bilaterally and there were some small areas of a scaly dermatitis involving the soles and lateral borders of the feet consistent with taenia pedis. These two areas were the only noticeable areas of skin involvement and together constituted no more than 3 percent of total body surface area (a decrease from the last examination). There was no significant change in appearance since the 2012 VA examination. The examiner noted the Veteran's complaints of some forehead itchiness, but there were no abnormalities of the forehead noted upon examination now or in October 2012. The Veteran was treated with oral medication (Fluconazole) for taenia cruris. He also was treated with topical corticosteroids and other topical medications. Again, physical examination revealed that eczema covered less than 5 percent of the total body area, including exposed areas. Infections of the skin also covered than 5 percent of the total body area, with none on exposed areas. The percentage of the entire body surface involved was estimated at less than 3 percent and the percent of exposed body surface area, which in this case was limited to very small areas of eczema of the hands and was estimated at less than one percent. The Veteran has not had any treatment with systemic corticosteroids or immunosuppressive agents. The examiner noted a technical correction to the diagnosis of taenia pedis in order to be as accurate as possible, but stated that it has not changed or worsened since the 2012 VA examination. At the May 2011 Board hearing the Veteran stated his service-connected skin disability bothered his groin, feet and forehead. (Transcript, p 7.) His representative stated that he was on a corticosteroid. (Transcript, p 8.) The Board finds the Veteran is competent to report his skin symptoms because such symptoms are obviously readily observable. See Washington, 19 Vet. App. at 368-69. However, the Board finds that medical personnel are the best source regarding the types of prescriptive medications that the Veteran takes for his disability. The Veteran has been credible in reporting his skin symptoms. The Board finds his statements do not materially conflict with what the VA examiner's estimate area of skin affected. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). To that extent, the Veteran's statements are assigned some weight, but the VA examiner's estimate of skin area affected is assigned greater weight because it is more specific. Considering the evidence, the Board does not find that an increased rating is warranted because there is no showing in the record that 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. See 38 C.F.R. § 4.118, DC 7806. Instead, far less of the body or exposed areas are affected and the examiner stated that there has not had any treatment with systemic corticosteroids or immunosuppressive agents. To the extent that the Veteran may be taking topical medicine that may be a corticosteroid, such is not "systemic," as required under the rating criteria and thus a higher evaluation would not be warranted on this basis. While the Veteran has asserted he has itching of the forehead, the Board finds the evidence consistently shows that no visible skin abnormalities of the forehead have been observed. The Board has considered all appropriate ratings under § 4.118, which covers the schedule of ratings of the skin. The service-connected skin disability affects the hands, feet and groin areas; it is best rated under DC 7806, dermatitis or eczema, where the disability fits the 10 percent rating. He does not have disfigurement of the head, face, or neck (DC 7800) and scars are not predominant (DCs 7801, 7802, 7803, 7804, or 7805). After considering every possible potential DC to see if an increase is available, the Board finds that a 10 percent evaluation best represents the Veteran's disability picture in this case. As explained, the skin disabilities do not rise to the level of an increased rating under 38 C.F.R. § 4.118. Other skin disabilities are not shown and no other DC provides for an increased rating. For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The Board has considered step one under Thun, 22 Vet App 111, and finds the schedular rating to be fully adequate in this case. The Veteran has described his skin symptoms, which are typical for his disability. The schedular rating takes such symptoms into account in the DC by listing specific symptoms along with their severity. The Board finds the pertinent rating criteria, as detailed previously, accurately describes the severity and symptoms of the service-connected skin disability. The evidence does not present an exceptional disability picture. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. The Board does not find TDIU was raised in this case. In sum, the Board finds that an increased rating in excess of 10 percent is not warranted and the reasonable doubt rule does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to an increased rating for the service-connected skin disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs