Citation Nr: 1324209 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 03-02 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable rating for tinea pedis. 2. Entitlement to increase in the ratings for posttraumatic stress disorder (PTSD) (currently assigned "staged" ratings of 10 percent prior to September 8, 2009; 30 percent from September 8, 2009; and 50 percent from December 16, 2010). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1969 to June 1971. These issues are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The PTSD issue was originally before the Board on appeal from an April 2008 rating decision of the Jackson, Mississippi RO that granted service connection for PTSD, rated 10 percent, effective November 21, 2006. An October 2010 rating decision increased the PTSD rating to 30 percent from September 8, 2009, and a March 2011 rating decision again increased the rating, to 50 percent, effective December 16, 2010. The tinea pedis issue was originally before the Board on appeal from a January 2009 rating decision which granted service connection and assigned a 0 percent rating. These issues were before the Board in February 2012 when the Board, in part, denied higher ratings for tinea pedis and for PTSD. The Veteran appealed the denial to the Court, resulting in a Joint Motion for Remand (Joint Motion) by the parties. By a February 2013 Order, the Court remanded this matter for compliance with the instructions in the Joint Motion. The issue of service connection for a skin disorder other than tinea pedis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). This issue was referred to the AOJ in the Board's February 2012 decision, but the current record, including the claims-file and Virtual VA, does not indicate that adjudication of this issue has yet taken place. The issue was raised by the Veteran's contentions that his service-connected tinea pedis is part of a broader skin disease affecting various parts of his body. The Veteran seeks compensation for the broader skin disability, and the Joint Motion has directed further attention to this matter in its discussion of the Veteran's lay testimony regarding skin symptoms. The Board does not have jurisdiction over the claim of service connection for a skin disability other than tinea pedis, and it is referred to the AOJ for appropriate action. The February 2013 Court Order and the Joint Motion do not disturb the portion of the February 2012 Board decision that reopened the claim of service connection for a left knee disability. The February 2012 Board decision remanded the reopened claim to service connection for a left knee disability. A review of the record (the claims file and Virtual VA) found no indication that the development directed in the Board's remand has been completed; and that issue has not been re-certified to the Board by the RO. Therefore, that issue is not ripe for Board consideration at this time. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action on his part is required. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a TDIU rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU rating is warranted as a result of that disability. Id. 453-54. The terms of the Joint Motion, associated with the February 2013 Court Order, instruct the Board to further consider that a July 2009 VA progress note states that the Veteran noted that "poor stress management has affected his ability to maintain employment," and that the September 2009 VA PTSD examination report indicates that psychiatric problems were among the causes of his retirement. The Joint Motion explains that "remand is necessary to allow the Board to address Appellant's reasonably raised claim for entitlement to TDIU," directing that a TDIU claim must be recognized as having been raised in this case. As the parties to the Joint Motion have found that the matter of entitlement to a TDIU rating is raised by the record, entitlement to such rating must be addressed (in the first instance by the RO) in the context of these claims. 38 C.F.R. § 4.16(b). This will require development of the factors for consideration when adjudicating a TDIU claim. The severity of the service-connected disabilities, employment history, educational and vocational attainment, are all factors having a bearing on the matter. The Board notes the matter of a TDIU rating will only be before the Board further if the Veteran files a notice of disagreement (NOD) in response to a negative decision by the RO on such claim, and then files a timely substantive appeal in the matter. Regarding the issue of entitlement to a higher rating for PTSD, the Board finds that a remand is also warranted to ensure a complete record for appellate review following the Joint Motion. The December 2010 VA psychiatric examination report shows that the Veteran had been in a VA PTSD treatment program until December 2009. He reported that since the conclusion of his outpatient treatment he felt his symptoms had been worsening in "the past 4 months," that "in June of [2010] the bad dreams return," and that "he is having difficulty coping with his PTSD issues." The report discusses that the Veteran was "open to applying to the residential PTSD program for more assistance in managing his PTSD." He was receiving ongoing treatment in the form of a prescription for an anti-depressant (Sertraline HCL). The December 2010 VA psychiatric examiner recommended that the Veteran "could benefit [from] participating in the PTSD residential program." Perhaps more significantly, a February 2011 VA medical record shows that the Veteran was "not adherent to Zoloft" as prescribed, and a recommendation was for the Veteran to follow up with a mental health professional ("f/u with MH"). The set of VA treatment records available for review in the claims-file has not been updated since just following this February 2011 VA medical report. In sum, the Board finds that the evidence of record strongly suggests that additional VA PTSD treatment has taken place in the more than two years since VA treatment records in the claims file were last updated. The Veteran's complete VA treatment records are considered part of the record on appeal since they are within VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The outstanding VA treatment records must be secured on remand. The Board also observes that the necessity of remanding this case for consideration of a TDIU claim deemed to have been raised by information concerning the severity of the Veteran's PTSD suggests that forthcoming development of the TDIU claim may be pertinent to assessing the severity of his PTSD symptoms. As the issue must be remanded for other reasons, and considering that the Veteran's PTSD was last evaluated with a thorough VA examination in connection with this appeal in December 2010, the Board finds that it would be reasonable and helpful to provide the Veteran with a new VA psychiatric examination at this time. Such examination will provide an opportunity to develop a VA medical opinion addressing the details of the symptom history discussed in the recent Joint Motion as requiring greater attention in the new appellate review of the matter; the Joint Motion directs attention to indications of record (in March 2008 and December 2010 VA examination reports and in an August 2008 VA treatment report) of exaggerated startle response, intrusive recollections, as well as possible problems with impulse control and homicidal ideation. Regarding the issue of entitlement to a higher rating for tinea pedis, the Board finds that a remand is also necessary at this time to ensure a complete record for fully informed appellate review. The Board notes that the December 2010 VA examination report and August 2010 VA medical treatment reports indicate that the Veteran had ongoing treatment for tinea pedis with a prescription for "ketoconazole 2% cream" twice per day as an antifungal medication. Although he was at one time using over the counter treatments, a May 2009 VA medical report clearly documents that the tinea pedis treatment was switched to "Rx ketoconazole cream." A November 2010 VA report shows that the Veteran's skin was also treated with a prescription for "ammonium lactate 12% lotion." The involvement of prescription medication in the treatment of the tinea pedis indicates that ongoing pertinent VA medical treatment and management is expected to have continued in the years since the set of VA records in the claims-file was last updated. The December 2010 VA examiner commented that the "tinea pedis is well-controlled because of his vigilance in caring for it." A February 2011 VA medical report notes that the treatment with "ketoconazole cream" was to be continued to maintain control of symptoms. It appears that the Veteran has had ongoing VA medical treatment for his skin symptoms, including the service-connected tinea pedis on appeal. A remand is needed to obtain any outstanding pertinent VA treatment records from the more than two years since the last update of the claims-file. A February 2011 VA medical report also indicates that the Veteran reported to VA a "non VA PCP [primary care physician]," with a name and contact information documented in the VA report. The identified doctor was previously identified by the Veteran as involved in the medical treatment of his skin complaints in May 2009. In May 2009, the Veteran submitted authorizations to obtain medical records from the private primary care physician and from a private dermatologist; it is not clear that all ongoing treatment records from the private providers are associated with the record (some treatment records from each provider spanning several years in the past are in the claims-file). During the processing of the remand, the RO will have the opportunity to assist the Veteran in obtaining any outstanding pertinent private medical records from private physicians he identifies. The Joint Motion directs the Board to provide greater discussion of the Veteran's lay testimony indicating that he experiences significant symptoms such as "constant itching," originally articulated in a November 2002 statement. The period on appeal spans more than 10 years, beginning in April 2002, and it appears that the Veteran's objective symptomatology has varied over that period of time. The Board finds that it is reasonable at this time to not only obtain more recent records to determine the details of symptomatology since February 2011, but also to obtain a new VA examination addressing both the current symptomatology and the subjective report of constant itching referenced in the Joint Motion. The Board notes that the period on appeal spans a time which brings into consideration the application of multiple versions of diagnostic codes. The applicable Diagnostic Codes were revised twice during the pendency of this appeal. The Veteran's bilateral tinea pedis is rated under Codes 7806-7813 (for dermatophytosis rated as dermatitis). Those criteria were revised effective August 30, 2002, shortly after the Veteran initiated his claim. The disability may also alternatively be rated under Codes 7800-7805 (for scars). These criteria were revised effective August 30, 2002 and October 23, 2008. The Veteran's claim was filed in April 2002; he is entitled to a rating under either the prior or any revised (from their effective dates, if such are more favorable) criteria. See VAOGCPREC 3-2000. Under the pre-August 30, 2002 Code 7806 criteria, "constant itching" is a pertinent element of the rating criteria for a higher disability rating. The Joint Motion expressly directs attention to the Veteran's November 2002 statement that his "skin always itches." That statement is somewhat ambiguous with regard to identifying the area of skin specifically affected by the currently service-connected tinea pedis (as opposed to areas of skin beyond the currently service-connected pathology of the skin of the feet), and subsequent evidence from the following decade in the appeal period presents inconsistent indications with regard to the pertinent symptomatology. The Board finds that to ensure that the Board may adequately comply with the directives of the Joint Motion, a new medical opinion (as part of the new VA examination discussed above) should also address whether the Veteran's service-connected disability itself was manifested by "constant itching" during any portion of the period on appeal. If so, the period or periods during which "constant itching" is found should be identified. In sum, regarding the tinea pedis issue, the Board finds that a remand is needed to obtain the Veteran's outstanding recent VA treatment records and to afford him a new VA examination with updated findings regarding the current severity of tinea pedis and clarification regarding his pertinent symptom history since 2002. This remand will also afford the RO opportunity to consider the significance, if any, of any development completed in connection with the Veteran's pending claim of service connection for a skin disease other than tinea pedis. During the processing of this remand, the RO shall also have the opportunity to provide clear VCAA notice letters to cure any arguable deficiency in VCAA notice. Accordingly, the case is REMANDED for the following: 1. The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements with respect to the issues on appeal. 2. The RO should secure for the record copies of the complete clinical records of all VA treatment the Veteran has received for pertinent disabilities, particularly tinea pedis and psychiatric disability, including from the Memphis VAMC since February 2011. 3. The RO should ask the Veteran to identify any and all private providers of evaluation and/or treatment he has received for his service-connected tinea pedis and psychiatric disabilities, and to provide releases for complete records of all providers identified (specifically including the previously identified Dr. Magdi Wasser and Dr. Terri Henson). The RO must secure for association with the claims file the complete clinical records (to the extent such records are not already associated with the claims-file) from all sources identified. If any provider does not respond, the Veteran should be so advised, and reminded that ultimately it is his responsibility to ensure that the private records are received. 4. The RO should complete all indicated notice and evidentiary development to properly address the matter of the Veteran's entitlement to service connection for a skin disease other than tinea pedis. He must assist in such development by providing all information sought, completing all requisite forms (and providing any releases needed to secure any pertinent private records). The RO should then adjudicate de novo the matter of the Veteran's entitlement to service connection for a skin disease other than tinea pedis. He should be notified of the determination. If it is not favorable, and if he timely files an NOD and perfects an appeal in the matter after a statement of the case (SOC) is issued, this matter should be returned to the Board. 5. The RO should complete all indicated notice and evidentiary development to properly address the matter of the Veteran's entitlement to a TDIU rating. He must assist in such development by providing all information sought, completing all requisite forms (and providing any releases needed to secure any pertinent private records). The RO should then adjudicate de novo the matter of the Veteran's entitlement to a TDIU rating. He should be notified of the determination. If it is not favorable, and if he timely files an NOD and perfects an appeal in the matter (after a SOC is issued), this matter should be returned to the Board. 6. After the record is determined to be complete, the RO should arrange for the Veteran to be examined by a psychologist or psychiatrist to assess the current severity of his service-connected PTSD. He should be properly notified of the examination and of the consequences of a failure to appear. The Veteran's claims file (including this remand) must be reviewed by the examiner in connection with the examination, and the examiner must also be provided a copy of the criteria for rating mental disorders. Findings reported must include notation of the presence or absence of each symptom noted in the criteria for ratings above 50 percent. The examiner should also comment on the expected impact of the symptoms found on the Veteran's everyday social and occupational functions, and must explain the rationale for all opinions offered. To ensure that the Board may adequately comply with the directives of the Joint Motion, the examiner should be sure to specifically discuss the evidence suggesting that the Veteran has experienced at least occasional homicidal ideation, intrusive thoughts of his in-service stressors, and exaggerated startle response. The Joint Motion directs attention to the March 2008 VA examination report's indications of recurrent and intrusive distressing recollections, exaggerated startle response, and the comment that "he is very likely to become violent if pushed too far." The Joint Motion directs attention to the August 2008 VA treatment report noting "he was considering killing his supervisor..." 7. After the record is determined to be complete, the RO should arrange for the Veteran to be examined by a dermatologist to determine the current severity of his service-connected tinea pedis. He should be properly notified of the examination and of the consequences of a failure to appear. The claims file (to include this remand) must be reviewed by the examiner. A complete history should be elicited, to include the types of medications that have been used / prescribed to treat the disability. Any indicated studies should be performed. The examiner must be provided a copy of all applicable criteria for rating tinea pedis, scars, and foot disability generally. These must include both the applicable old a new versions of Diagnostic Codes 7806-7813 (for dermatophytosis rated as dermatitis) effective before and after August 30, 2002. These must also include all applicable versions of Codes 7800-7805 for scars (revised effective August 30, 2002 and October 23, 2008). The findings reported must be sufficiently detailed to allow for rating under all applicable criteria. The examiner should also comment on the frequency and duration of any flare-ups, and express an opinion as to the effect of the service-connected skin disability on the Veteran's ability to work. The examiner should also discuss whether the Veteran's service-connected disability itself was manifested by "constant itching" during any portion of the period on appeal; the examiner should note (and address) the Veteran's November 2002 statement that his "skin always itches" and should include questions about the history and constancy of itching associated with the service-connected disability during the interview of the Veteran. The medical opinion should identify any (and all) periods (from 2002 to the present) during which the service-connected skin disability was manifested by "constant itching". The examiner must explain the rationale for all opinions. 8. The RO should then review the claims file and re-adjudicate the claims for increased initial ratings for tinea pedis and for PTSD (to include consideration of the possibility of any additional "staged ratings" as indicated). If either claim remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).