Citation Nr: 1324863 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-14 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a compensable evaluation for tinea pedis of the right foot. 2. Entitlement to a total disability rating based on unemployability. REPRESENTATION Veteran represented by: Peter J. Meadows, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel (The issues of entitlement to service connection for a right leg disorder, a right knee disorder, and a right shoulder disorder are the subject of a separate Board decision.) INTRODUCTION The Veteran served on active duty from April 1970 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A total disability rating based on individual unemployability (TDIU) is part of increased rating claims where the Veteran claims his disability causes unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a February 2012 statement, the Veteran indicated that he has tinea pedis of the right foot, as well as a left hip disorder and that because of his "condition", he cannot work. As the issue of TDIU is "part and parcel" of a claim for an increased rating, the issue of entitlement to a TDIU is before the Board. Id. The issue of entitlement to TDIU is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's tinea pedis of the right foot is manifested by subjective complaints of burning, pain, and pruritus; the disorder effects less than five percent of the total body area, with no exposed areas affected, and no required treatment of intermittent systemic therapy. CONCLUSION OF LAW The criteria for a compensable rating for service-connected tinea pedis of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The RO's September 2004 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, a June 2009 letter to the Veteran notified him that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating. Moreover, this letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, examiners took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. Further, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected skin disorder since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The examinations in this case are adequate upon which to base a decision. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159 (c)(4) As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Service connection for tinea pedis of the right foot was granted by a January 2002 rating decision and a noncompensable evaluation was assigned under 38 C.F.R. § 4.118 , Diagnostic Code 7806, effective March 21, 2001. Subsequently, the Veteran submitted a claim for an increased rating, and a January 2005 rating action denied the claim. This appeal ensued. While the Veteran has been found to have skin disorders other than tinea pedis of the right foot, the Board will confine its analysis to the manifestations of his skin disorder as it affects his right foot only. The Veteran was examined by VA in June 2005. The claims file was reviewed. He complained of burning, itching and discomfort between the right fifth and fourth toes. He stated that he used ointment, powder, and footbaths. Examination showed athlete's foot fungal infection between the fourth and fifth toes with scaling; wet, with a scab covering it. Tinea pedis of the right foot was diagnosed. The Veteran was examined by VA in June 2009. He indicated that he has used Lamisil cream in the past and also tried clotrimazole cream and tolnaftate powder. The Veteran reported that topical help to control the rash but that it never resolves. He was noted to have been applying Lotrimin cream and powder daily with no real improvement. The examiner noted that local symptoms included occasional pruritus and constant pain in the right fifth toe. Examination of the feet showed white macerated plaques between the third and fourth toes, and the fourth and fifth toes. There was no erythema or swelling of any of the toes. There was no pain on palpation and no ulcerations. The body surface area affected was less than one percent with erosion blastomyces interdigitalis. The examiner noted no corticorsteroid or immunosuppressive drugs had been prescribed for treatment, and there was no functional impairment as a result of the service-connected skin disorder. The examiner indicated that the exposed areas were not affected. The diagnoses was erosion blastomyces interdigitalis. Tinea pedis was not shown on examination. On private examination in October 2011, it was noted that the Veteran had tinea pedis, reported by the Veteran as a constant itchy rash of the right foot. It was reported that the Veteran used over the counter Lotrimin cream and powder daily. The Veteran was noted to have infections of the skin less than five percent of the total body area and the exposed area was not affected. He was found to have white macerated plaques between the fourth and fifth toes, as well as between the third and fourth toes on the right foot. It was noted that there was no functional impairment as a result of the service-connected skin disorder. The finding was tinea pedis, with less than five percent of total body surface area affected. In a November 2012 letter, W. J., M.D., stated that the Veteran's files had been reviewed. Dr. J. stated that chronic tinea pedis can be moderately debilitating disorder associated with the breakdown of skin, pain, and inflammation, and very often, secondary bacterial infections requiring antibiotics. Dr. J. opined that the service-connected skin disorder would be "more likely than not, moderately disabling to one's activities of daily living." The Veteran was examined by VA in November 2012. He denied any treatment with systemic medications. He complained of pain to both feet, greater on the right. He reported using Lamisil every day. Examination showed that he had infections of the skin with less than five percent of the total body area affected, with none of the exposed area of the skin affected. There was maceration in the web spaces between the third and fourth toes, and between the fourth and fifth toes. The examiner noted that there was no functional impact as a result of the service-connected skin disorder. Tinea pedis affecting the feet was the pertinent diagnosis. VA outpatient treatment records from 2001 to 2003 show treatment for skin complaints; however these records do not show that the service-connected skin disorder of the right foot covered more than five percent of the total body area or that any exposed skin was involved. The records also do not show that the Veteran used any systemic medications. His treatment in January 2003 and in May 2003 was for debridement. The Veteran's service-connected tinea pedis of the right foot is currently rated as dermatitis under Diagnostic Code 7806. 38 C.F.R. § 4.118. A noncompensable evaluation is warranted for dermatitis when less than five percent of the entire body or less than five percent of exposed areas are affected, and no more than topical therapy is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent evaluation is warranted for dermatitis that involves at least five 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent evaluation is warranted for dermatitis that involves 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. Id. The Veteran's service-connected tinea pedis of the right foot does not affect at least five percent of the entire body or of exposed areas. The record does not show that treatment for this disability has ever required systemic therapy. Rather, the Veteran consistently reported that he used topical cream daily. The November 2012 statement from Dr. J. offers little probative value as the Veteran was not examined by Dr. J. and specific manifestations were not documented. Moreover, the statements provided are general, with no rationale provided. Accordingly, the criteria for a compensable rating under Diagnostic Code 7806 for the Veteran's service-connected tinea pedis are not met. In making this determination, the Board considered the lay evidence of record. As for the Veteran's own statements concerning current symptoms associated with his tinea pedis, they show that he experiences a skin rash, itching, burning and pain, requiring the use of topical cream. Such statements are competent evidence as to skin symptoms, as they are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Board has no reason to doubt the credibility of such statements as they are not inconsistent with the other evidence of record. Nevertheless, the Veteran does not contend that his service-connected tinea pedis affects at least five percent of the entire body or of exposed areas or that treatment for the disability has ever required systemic therapy. During the pendency of this appeal, VA revised the criteria for evaluating disabilities of the skin, effective October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim in August 2004, and therefore, the revised regulation is inapplicable to this case. The evidence shows no distinct periods of time during the appeal period, during which the Veteran's service-connected skin disorder has varied to such an extent that a compensable rating would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Veteran's service-connected tinea pedis of the right foot is evaluated as dermatitis, the criteria of which is found by the Board to specifically contemplate the level of impairment caused by this disability. 38 C.F.R. § 4.114, Diagnostic Code 7806. Diagnostic Code 7806 evaluates skin disabilities by the percentage of total body areas or exposed areas affected by the skin disability. All visible skin symptoms, to include skin rash, exudation, ulcer formation, shedding, scaling, crusting reported by the Veteran, are contemplated by this diagnostic code by the percentage of total body areas or exposed areas affected by the skin disability. Additionally, this diagnostic code evaluates the severity of a skin disability by the necessary treatment measure, which contemplates non-visible symptoms, such as pain, itching, or any other symptoms are not reasonably measurable by the percentage of body areas affected. The Veteran's complaints of itching, discomfort, or other non-visible symptoms associated with his service-connected tinea pedis are contemplated by this component of Diagnostic Code 7806. As noted above, the medical evidence of record shows that the Veteran's tinea pedis of the right foot is manifested by small areas, which affect less than five percent of the Veteran's entire body and does not affect exposed areas, with no required treatment of intermittent systemic therapy. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, all relevant symptoms reported by the Veteran are adequately contemplated by the current disability rating criteria. A compensable rating is provided for certain manifestations of service-connected skin disorder but the medical evidence of record did not demonstrate that such manifestations are present in this case. Accordingly, the Board concludes that the criteria for the current disability rating reasonably describe the Veteran's disability level and symptomatology, and therefore, the schedular evaluation is adequate and no referral is required. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence of record does not show findings that meet the criteria for a compensable rating, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994). ORDER A compensable rating for tinea pedis of the right foot is denied. REMAND The determination of whether the Veteran is entitled to TDIU is part and parcel of the determination of the above-captioned increased rating claim. Rice, 22 Vet. App. at 453; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749. In a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). Additionally, the Veteran should be provided with an updated notice letter for the issue on remand. Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran appropriate statutory and regulatory notice regarding the issue of TDIU on appeal. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the effects of his service-connected disabilities on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, alone or acting in concert with each other, render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be adjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs