Citation Nr: 1324792 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-15 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher (compensable) disability rating (evaluation) for tinea pedis and tinea unguim of the feet. 2. Entitlement to a higher (compensable) disability rating (evaluation) for left calf muscle scar, residual. REPRESENTATION Appellant represented by: Carol B. King, Claims Agent ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1978 to October 1982, May 1986 to May 1997, and October 2005 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to increased ratings for both of the disabilities on appeal. The Veteran appealed from the denials in this rating decision, and the matters are now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal which have not already been associated with the paper claims file. FINDINGS OF FACT 1. Throughout the entire rating period, tinea pedis and tinea unguim has affected less than five percent of the entire body, less than five percent of exposed areas, has required no more than topical treatment during the last 12 months, and has been productive of pain. 2. Throughout the entire rating period, left calf muscle scar has been productive of pain. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating, but no more, for tinea pedis and tinea unguim of the feet have been met throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7806-7813 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating, but no more, for left calf muscle scar have been met throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in May 2009, prior to the initial adjudication of the increased rating claims on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). For an increased-compensation claim, the Court of Appeals of Veterans Claims has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Here, the May 2009 notice sent to the Veteran met this requirement. Additionally, in an April 2011 Statement of the Case, the Veteran was provided with the regulations which are used to rate both of the claimed conditions. Thereafter the claims were readjudicated with the issuance of a Supplemental Statement of the Case in January 2013. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. In June 2009, the Veteran was afforded a VA examination of his left inside calf muscle scar and bilateral foot condition. During the examination, the examiner conducted a physical examination of the Veteran, and took down the Veteran's lay history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. The examiner did not affirmatively identify whether she reviewed the Veteran's claims file. However, the Veteran's claims relate to the current state of his disability, and as the examiner conducted a thorough physical examination of the Veteran's current condition and considered the Veteran's lay statements regarding his level of symptomatology, the Board finds that the Veteran's examination fulfilled VA's duty to assist with respect to obtaining VA examination or opinion. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). See also, VAOPGCPREC 20-95 (July 14, 1995) (opining that VA examiners are not required to review the claims file in each case in which the VA conducts an examination for compensation purposes). The Board also notes that the Veteran was afforded an additional opportunity to appear for VA examination, however he failed to report to an examination in October 2012. The Veteran was notified of the ramifications of this failure in a Supplemental Statement of the Case issued in January 2013. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed 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 claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Increased Ratings, Generally Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). With regard to the disorders whose ratings are on appeal, the Veteran's endorsed symptoms such as pain, itching, and irritation are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran was awarded service connection and assigned initial disability ratings in a prior rating decision. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here, as the evidence discussed below shows, the disabilities at issue have not significantly changed and uniform evaluations are warranted. Increased Rating for Tinea Pedis and Tinea Unguim of the Feet. In the September 2009 rating decision on appeal, the Veteran's noncompensable evaluation for bilateral tinea pedis and tinea unguim, which was effective June 1, 1997, was continued. The Veteran's bilateral foot disability is rated under 38 C.F.R. § 4.118 Diagnostic Codes (DCs or Codes) 7806-7813. Hyphenated diagnostic codes are used when a rating under one Code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. In this case DC 7813 is used for rating the Veteran's dermatophytosis, while DC 7806 represents dermatitis or eczema, the underlying source of the disability. Under DC 7813, dermatophytosis (tinea pedis and tinea unguium) are to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7813. DC 7806 provides that where a skin disorder affects less than 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy is required during the past 12-month period, a noncompensable rating is assigned. 38 C.F.R. § 4.118, DC 7806. Where a skin disorder affects 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, 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 10 percent rating is assigned. Id. Where a skin disorder affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent rating is assigned. Id. Where a skin disorder affects more than 40 percent of the entire body or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, a 60 percent rating is assigned. This is the maximum schedular rating available under DC 7806. Id. On VA examination in June 2009, the Veteran reported itching, shedding of skin, and crusting. There was no exudation or ulcer formation, and symptoms occurred every two to three months, lasting two to five days at a time. During active symptomatology, the Veteran's daily function was limited to the extent that walking and jogging became painful. In the past 12 months, treatment was limited to topical daily applications of Vaseline. Tinea pedis was found on the skin of the toe, around the heels, on both fifth toenails, and was characterized by exfoliation. Tinea unguim was located on both great toes and was also characterized by exfoliation. In totally, physical examination revealed that zero percent of the exposed area of the skin affected, and less than one percent of the whole body was affected. In correspondence to VA, the Veteran has endorsed constant itching, pain and discomfort of the feet. The Veteran's endorsements are competent to the extent that these are observable symptoms. Layno, 6 Vet. App. 465. The Board has not discounted any lay evidence regarding the severity of the Veteran's service-connected bilateral foot condition merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Here the Board finds the Veteran's endorsements of symptoms to be credible to the extent that he has been consistent in his reports both directly to VA for compensation purposes and when speaking to medical professionals for treatment purposes. The Veteran's tinea pedis and tinea unguim has been 10 percent disabling throughout the period on appeal. Tinea pedis and tinea unguim has involved less than 5 percent of the entire body, less than 5 percent of the exposed are, and has required no more than topical treatment. Accordingly a compensable rating under DC 7806 is not warranted. However, DC 7806 specifically invokes consideration of a rating under DCs 7801, 7802, 7803, 7804, or 7805. DC 7804 provides for a 10 percent rating where one or two scars are unstable or painful. 38 C.F.R. § 4.118, DC 7804. Given the Veteran's competent and credible lay assertions of constant itching, pain and discomfort, the Board finds that a 10 percent rating is warranted by analogizing service-connected tinea pedis and tinea unguim to a scar. A rating of greater than 10 percent is not warranted as the Veteran does not have the equivalent of three or four scars on his feet. See 38 C.F.R. § 4.118, DC 7804 (a 20 percent rating is provided on three or four scars that are unstable or painful). The Board has considered whether a greater than 10 percent rating may be available under a Diagnostic Code other than 7806 or 7804 and finds that one is not. The Veteran's service-connected tinea pedis and tinea unguim does not affect the head, face, or neck (DCs 7800, 7801), and DC 7802 does not provided for a rating of greater than 10 percent. Additionally, the Veteran does not have a disorder listed in DCs 7807-7833 other than the tinea pedis and tinea unguim itself, for which he is being rated. The Board finds that, resolving reasonable doubt in the Veteran's favor, the Veteran's tinea pedis and tinea unguim of the feet has been 10 percent disabling throughout the entire period on appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Increased Rating for Left Calf Muscle Scars. In the September 2009 rating decision on appeal, the Veteran's noncompensable evaluation for a scar on the left calf muscle, which was effective June 1, 1997, was continued undisturbed. The Veteran's scar is rated under 38 C.F.R. § 4.118 DC 7805 which directs that scars, including linear scars, are to be evaluated based on disabling effects not considered in a rating provided under DCs 7800 through 7804. Note (3) of 38 C.F.R. § 4.118, DC 7804 dictates that disabilities rated under DC 7805 may also be evaluated under DC 7804 where appropriate. Under that Code, one or two scars that are unstable or painful are assigned a 10 percent rating. Three or four unstable or painful scars are assigned a 20 percent rating, and five or more scars that are unstable or painful are assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. On VA examination in June 2009, the Veteran endorsed pain and skin breakdown three to five times a week. Pain was below the left knee on the inner side of the knee. The Veteran's left calf scar limited the Veteran to the extent that his leg was painful in the early morning hours. Physical examination revealed that skin lesions involved zero percent of the exposed area of the skin, less than one percent of the area of the whole body, and did not impact motion. Acne, chloracne, scarring alopecia, alopecia areata, and hyperhidrosis were absent. The scar was not painful on examination, and there was no skin breakdown. The scar was superficial, without underlying tissue damage, inflammation, edema, or keloid formation. There was no disfigurement, no limitation of motion, and no other limitation of function associated with the scar. The examiner opined that there was no effect on the Veteran's usual occupation. In correspondence with VA, the Veteran has endorsed pain and skin breakdown associated with his left calf muscle scar. The Veteran is competent report symptoms such as pain and irritation as these are observable symptoms. See Layno. Thus the Veteran's contentions are competent. The Board also finds the Veteran's endorsement of pain and skin breakdown credible as he has been consistent in his reports of these symptoms throughout the records. On VA examination in June 2009 the examiner stated that the scar was not painful and without skin breakdown, however at the same examination the Veteran endorsed pain and skin breakdown. Given these conflicting competent reports - one from the Veteran, the other from the examiner - the Board resolves reasonable doubt in favor of the Veteran in finding that his left calf scar is painful and shows signs of breakdown. After reviewing the entire claims file, the Board finds that the Veteran's left calf muscle scar has been painful and thus warrants a 10 percent rating under DC 7804. A rating of greater than 10 percent under DC 7804 is not warranted as the Veteran does not have more than two scars. The Board has also considered whether a high rating may be available under a different Code and finds that one is not. As stated in the preceding section, the Veteran does not have a disorder of the skin listed in DCs 7807-7833 other than the tinea pedis and tinea unguim for which he is already separately rated. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's left calf muscle scar has been 10 percent disabling throughout the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for a rating based on extraschedular considerations is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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 claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by service-connected tinea pedis and tinea unguim, and a left calf muscle scar are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 7804, 7806, and 7813, provides for disability ratings based on symptoms such as pain, level of treatment, and the functional impact of skin disabilities. See 38 C.F.R. §§ 4.21, 4.118. In this case, considering the lay and medical evidence, the Veteran's skin disabilities have resulted in pain without additional loss of function and requiring topical treatments. These symptoms and treatments are considered under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). For these reasons, the Board finds that the schedular rating criteria is adequate to rate service-connected bronchitis, and referral for consideration of an extraschedular evaluation is not warranted. Finally, as the record does not reveal that the Veteran is claiming that he is rendered unemployable by virtue of his service-connected pedis and tinea unguim, and a left calf muscle scar, and the evidence shows that he is not so limited. The Board finds that the record has not raised an implied claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating of 10 percent, and no higher, for tinea pedis and tinea unguim of the feet is granted. A rating of 10 percent, and no higher, for residual left calf muscle scar is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs