Citation Nr: 1324543 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 06-24 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable disability rating for tinea pedis (athlete's foot). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California which granted service connection and assigned a noncompensable disability rating effective August 26, 2003. The Veteran has not expressed disagreement with the effective date. The Board notes that the issue was previously before the Board in March 2010 and August 2012 at which time it was remanded for appropriate development. The claim has have been returned for appellate review. In reviewing the Veteran's appeal for an increased rating, the Board has not overlooked the recent holding of the States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has not specifically claimed that his service-connected disability on appeal prevents him from obtaining and/or maintaining employment. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. 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 The Veteran's service-connected tinea pedis is manifested by complaints of itching and a rash without the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period or that tinea pedis has affected 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. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected tinea pedis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7800, 7804, 7806, 7813, 7814 (effective prior to August 30, 2002, from August 30, 2002 to October 22, 2008, and from October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in March 2001 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, a March 2006 letter described how disability ratings and effective dates were assigned. Furthermore, the Board notes that, for claims for increased ratings, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). There is also substantial compliance with the Board's multiple remand directives. In a March 2010 remand, the Board requested an addendum opinion clarifying the findings of a September 2010 VA examination. An additional VA examination was conducted in March 2011 to include an opinion clarifying the September 2010 opinion. A June 2011 supplemental statement of the case (SSOC) adequately addressed this issue. An August 2012 remand requested the RO obtain an additional VA examination. An additional VA examination was conducted in September 2012. An April 2013 supplemental statement of the case (SSOC) adequately addressed this issue. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria In a February 2005 rating decision, the granted service connection for tinea pedis, rated noncompensable, effective from August 26, 2003. The Veteran appealed the noncompensable rating alleging that his tinea pedis was more severe. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to 'staged' ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). C. Factual Background In a February 2005 rating decision, the RO granted service connection for tinea pedis and assigned a noncompensable evaluation, effective August 26, 2003, under Diagnostic Code 7813. The Veteran is seeking a higher evaluation. Under Diagnostic Code 7813, dermatophytosis is rated as disfigurement of the head, face, neck, scars or dermatitis depending upon the predominant disability. Dermatitis is rated under Diagnostic Code 7806. Under the version of Diagnostic Code 7806 in effect as of August 30, 2002, a 10 percent rating is assigned for 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 systemic 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 evaluation will be assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is 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 evaluation will be assigned for dermatitis that covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or with 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 (2003). The Board acknowledges that 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 were more recently amended, effective from October 23, 2008. However, Diagnostic Codes 7806 and 7813 remained under the same under the criteria effective October 23, 2008. The Veteran asserts that he has constant pain and itching of his feet, with continued treatment with Lamisil. Service treatment records include a single complaint of athlete's foot in July 1962. At that time he complained of pain when walking. The examiner noted moderately severe tinea pedis, both feet between little and fourth toes. Examination reports dated in June 1959 and June 1965 are negative for any complaints or findings of tinea pedis. In an August 1990 private treatment record, the Veteran complained of a rash on his foot with blisters and peeling in between toes for several years. He reported it will improve then comes back. The examiner diagnosed a fungal infection, tinea pedis, and prescribed Lotrimin. In a November 2001 VA foot examination, the examiner noted no skin or vascular change. During a February 2001 VA podiatry assessment, the Veteran complained of burning on the bottom of his feet. The examiner noted slight tinea, though there was no maceration. Lamisil cream was prescribed. A December 2004 VA progress note reported no open lesions, sores or blisters, and good texture of skin. During a January 2005 VA examination, the Veteran complained he has a rash which waxes and wanes in response to topical treatment. He also complained of burning and itching intermittently when the rash flares. The Veteran reported that the rash is confined to feet and no other areas of the skin are affected. Topical therapies included Lamisil cream as needed, last used several days ago. Upon examination, the examiner noted mild scale and erythema in a moccasin distribution on both feet. The examiner also found mild thickening of great toenails, but other nails are no affected. No scarring was noted. The examiner reported that zero percent of exposed areas and less than five percent of the entire body area is affected. The diagnosis was mild tinea pedis, well controlled by use of Lamisil cream accounting for the lack of hyphae on the examination. Tinea can cause burning and itching consistent with the Veteran's complaints; however, one would expect the symptoms to be minimal if the disease is well-controlled by topical therapy. The examiner opined there is minimal functional impairment at best. In a June 2006 substantive appeal, the Veteran asserted that his feet itch and burn constantly and the skin cracks all the time, especially between the toes. Ina June 2010 statement, the Veteran again asserted that he has almost constant pain and burning from his foot disorder and that treatment with Clotrimzole 1% is of no use. He has tried other ointments and creams throughout the years with no relief. During a September 2010 VA examination, the Veteran reported tingling and discomfort in his feet and he relates this to his athlete's feet condition. The Veteran reported he was given oral medication to take in the past. He is currently not taking anything or using anything topically. Upon examination, the examiner noted there was no evidence of tinea pedis, but that he does have some onychomycosis, but this is asymptomatic. The diagnosis was tinea pedis. In a January 2011 VA progress note, the Veteran complained of athlete's foot that has not responded well to prior treatment. Upon physical examination, the examiner noted mild tinea pedis and onychomycosis. The Veteran stated he was not interested in medication or pursuing further evaluation at that time. During a March 2011 VA examination, the Veteran reported that his symptomatology had not changed since his last examination. He complained of chronic burning in his feet and even at rest he has complaints of tingling and discomfort which have not responded well to oral or topical medication in the past. The examiner noted that the September 2010 VA examiner likely meant to report that he did not have tinea pedis, but has onychomycosis as a diagnosis. Upon physical examination, the examiner noted some mild to moderate onychomycosis with the worst being the hallux nails bilaterally. There was no evidence of interdigital maceration, scaling, or blistering suggestive of tinea pedis. The examiner found there is no evidence of tinea pedis. During a September 2012 VA examination, the examiner noted a diagnosis of tinea pedis. The Veteran complained that he has been using anti-fungal creams twice a day since they were prescribed for him in the Navy. He indicates that in anticipation of the examination, he stopped using the creams so that the skin could be scraped if needed in order to confirm the diagnosis. He has not noted any significant change in his condition over many years. He has never used oral medications. He had no systemic manifestations. The examiner noted no systemic corticosteroids or other immunosuppressive medications had been prescribed. Upon physical examination, the examiner noted infections of the skin affected less than five percent of the exposed area. The Veteran had dry-appearing skin on the heels and balls of his feet, but no evidence of fungal involvement between the toes, maceration, or fissuring of the skin. The fungal involvement consisted of approximately 27 to 28 square inches on each the sole of each foot The examiner determined this would represent about two to three percent of his total body area. The examiner noted there was no scarring, pain, open lesions, or ulcers. He is able to maintain stability with respect to his condition by using anti-fungal creams daily. Other than mild itching or burning sensation several times per day which can be distracting, he experiences no other functional limitations as a result of his condition. The examiner considered the Veteran's complaints of burning in the past associated with his condition; however, the examiner found that this discomfort is likely nerve pain. Though he has no history of diabetes or alcohol addiction, the discomfort could be associated with chemotherapy that the Veteran had for his prostate cancer some years ago. Regardless, this discomfort is not associated with his bilateral tinea pedis. D. Analysis With regard to Diagnostic Code 7813, the Board notes that the Veteran's tinea pedis is most appropriately evaluated under the criteria for rating dermatitis or eczema. See 38 C.F.R. § 4.118, Diagnostic Code 7813 (2003). The Board has reviewed the remaining diagnostic codes relating to skin disabilities but finds that they are inapplicable in this case. See 38 C.F.R. § 4.118 (2003). Specifically, the Board notes that the Veteran has not been noted as having scars due to his tinea pedis. Therefore, the Board finds the Veteran is most appropriately evaluated under Diagnostic Code 7806, as opposed to any of the criteria or revised criteria for evaluating scars. With regard to assigning an increased rating under the version of Diagnostic Code 7806 in effect as of August 30, 2002, the Board notes that the Veteran's tinea pedis does not affect 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. In this regard, the Board notes that the most recent VA examiner specifically explained that the had evidence of active tinea pedis on the soles of each foot bilaterally. The examiner also noted the presence of onychomycosis involving his great toe bilaterally and two of his minor toenails. The examiner noted that skin involvement was mild and affected about 27 square inches on the sole of each foot, representing about 2 to 3 of his total body area. As the disability was limited to the feet, no exposed area was shown to be affected. The Veteran's tinea pedis also has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Though the Veteran has been treated with Lotrimin throughout the claims period, there is no evidence that the medication is a corticosteroid or other immunosuppressive drugs. The September 2012 VA examiner specifically denied any current or history of corticosteroids or other immunosuppressive drugs. Additionally, the Veteran's tinea pedis affects, at worst, only about two to three percent of his total body area as noted during the September 2012 VA examination. The Veteran has not specifically asserted that this condition has worsened since the September 2012 VA examination. As such, an increased rating is not warranted under the version of Diagnostic Code 7806 in effect as of August 30, 2002. The Board has considered the Veteran's own reports as to the severity of his skin disorder, and recognizes that he clearly competent to describe the symptoms of a skin rash. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ('Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg'). However, the Veteran's statements as to the nature and severity of his skin condition are contradicted by the multiple VA examination reports. In fact, both the January 2005 and September 2012 VA examiner noted no more than minimal functional limitation. Additionally, though the Veteran has complained of consistent burning, the September 2012 VA examiner associated the Veteran's claimed burning with his tinea pedis. The Board finds the objective medical findings of the competent VA examiners to ultimately be more reliable than the vague, subjective descriptions offered by the Veteran. The Board sympathizes with the Veteran's difficulties, but the most probative establishes that his skin disorder does not meet the criteria for a compensable disability rating. The Board has also considered whether staged ratings are appropriate based on any periods of increased or decreased symptomatology. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as 'staged ratings'). The Board finds that symptoms of the Veteran's tinea pedis have not undergone any significant increase or decrease so as to warrant a compensable rating at any time during the appeal period. Accordingly, staged ratings are not warranted. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected tinea pedis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating for the Veteran's service-connected tinea pedis for the period of time on appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for tinea pedis, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. ORDER Entitlement to a compensable disability rating for tinea pedis (athlete's foot) is denied. ____________________________________________ MICAHEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs