Citation Nr: 1325659 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-43 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the reduction in the evaluation for tinea unguium and tinea pedis from 10 percent to noncompensable, effective June 1, 2008, was proper. 2. Entitlement to an increased evaluation for tinea unguium and tinea pedis prior to October 12, 2006. 3. Entitlement to an increased evaluation for tinea unguium and tinea pedis since October 12, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to March 1971, from May 1971 to February 1974, from July 1974 to July 1975, and from January 1977 to March 1992. He also had periods of active duty training and inactive duty training with the National Guard/Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Atlanta, Georgia Regional Office (RO). In July 2013, the Veteran withdrew his request for a Board hearing. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. In various correspondence, the Veteran asserts entitlement to service connection for skin disorders other than tinea unguium and tinea pedis. He has been diagnosed with actinic keratosis, seborrheic dermatitis/keratosis, tinea versicolor, eczema, acne, acne rosacea, and urticaria. The issue of entitlement to service connection for a skin disorder other than tinea unguium and tinea pedis has not, however, been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is referred to the Agency of Original Jurisdiction for appropriate action. The issue of entitlement to an increased evaluation for tinea unguium and tinea pedis since October 12, 2006 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center, in Washington, DC. FINDINGS OF FACT 1. The March 2008 rating decision, which reduced the evaluation for the Veteran's tinea unguium and tinea pedis from 10 to noncompensable, failed to comply with pertinent law and regulations. 2. Prior to October 12, 2006, the Veteran's tinea unguium and tinea pedis of the feet did not encompass 20 to 40 percent of his entire body, or 20 to 40 percent of the exposed areas affected, nor did it required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the a 12-month period. CONCLUSIONS OF LAW 1. The March 2008 rating decision that reduced the evaluation for tinea unguium and tinea pedis from 10 percent to noncompensable percent, effective June 1, 2008, was improper and is void ab initio. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2012). 2. Prior to October 12, 2006, the criteria for an evaluation in excess of 10 percent for tinea unguium and tinea pedis, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7813-7806 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reduction The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this case, the Veteran was assigned the 10 percent rating for tinea unguium and tinea pedis in a September 2003 rating decision, effective August 30, 2002. Therefore, when his rating was reduced effective June 1, 2008, it had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply. The reduction is void because the provisions of 38 C.F.R. § 3.344 were not met. In this respect, the March 2008 rating decision reflects no suggestion of any consideration of 38 C.F.R. § 3.344 at all. The decision to reduce was not in accordance with law because the RO did not make a finding that the VA compensation examination used as a basis for the reduction was as full and complete as the examination on which the 10 percent rating was established. Further, there were no findings or discussion whether there was material improvement, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. Therefore, the RO erred in its March 2008 rating action by reducing the evaluation for tinea unguium and tinea pedis to noncompensable effective June 1, 2008. Increased Evaluation Prior to October 12, 2006 Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In a letter dated in March 2006, VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim herein decided on the merits, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the issue decided below. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002, and again amended effective October 23, 2008. Under these circumstances, the regulation as it existed prior to the October 2008 changes is applicable to the evaluation of the Veteran's skin disorder prior to October 12, 2006. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Diagnostic Codes 7806 and 7813, which are applicable to the present claim, were not revised in any substantive way in October 2008. The Veteran's service-connected tinea unguium and tinea pedis has been evaluated under Diagnostic Code 7899-7806. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the Veteran's tinea unguium and tinea pedis are rated by analogy, using the criteria for dermatitis or eczema under Diagnostic Code 7806. The Board notes that Diagnostic Code 7813 is applicable to this claim. Under Diagnostic Code 7813, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) was rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, 7805), or dermatitis (Diagnostic Code 7806) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Under Diagnostic Code 7806, a 10 percent rating is warranted for dermatitis or eczema that is 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 rating is warranted for 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. Considering the pertinent evidence in light of the above, the Board finds that prior to October 12, 2006, entitlement to a rating in excess of 10 percent for tinea unguium and tinea pedis was not warranted. Historically, the Veteran's service treatment records reflect that he was treated for multiple macular lesions on his forearms and hands after returning from Vietnam in February 1971. It was noted that the distribution fit insect bites. All lab work was negative and the impression was papular urticaria, resolving. On subsequent reports of medical history, it was noted that the Veteran had been treated for a skin disease in 1971 and that it had resolved and was asymptomatic. Post-service, the report of a May 1992 VA examination reflects that the Veteran had mild tinea cruris. In an April 1993 rating decision, the RO granted entitlement to service connection for tinea cruris and assigned a noncompensable rating. The Veteran filed a claim for an increased evaluation in April 2003. A May 2003 VA examination report reflects that the Veteran denied having tinea on any area except for his feet, which included fungal eruptions of the toenails. He denied any fungal lesions of the inguinal and axillary areas. On objective examination, it was noted that he had a skin lesion on his left forearm and a scar on the nasal bridge. There were no findings made with regard to the feet. The examiner changed the diagnosis from tinea cruris to tinea unguium and tinea pedis of the feet. In a September 2003 rating decision, the RO increased the evaluation for tinea unguium and tinea pedis from noncompensable to 10 percent, effective August 30, 2002. The evaluation may have taken into consideration lesion on the Veteran's left forearm, which was not service-connected. In March 2006, the Veteran filed a claim for an increased evaluation for his service-connected skin disorder. The evidence shows that the appellant is only service-connected for tinea unguium and tinea pedis of the feet. Although there is evidence that he has other skin disorders that affect his chest, back, arms, and face, they are not service-connected disabilities and may not be considered in the current evaluation. As noted above, the question of entitlement to service connection for a skin disorder other than tinea unguium and tinea pedis has been referred to the RO for initial consideration. If entitlement is granted for any other skin disorder, the appellant's disability evaluation may be reconsidered. A June 2006 private treatment record from Dr. AHC reflects that the Veteran had a history of tinea and sun-damaged skin. He complained of burning of the feet and a note was made to rule out neuropathy. There was no evidence of tinea at that time. In July 2006, it was noted that he had a lesion of the left hand. His feet appeared normal. There was no erythema or fungus. It was recommended that he wear leather shoes and cotton socks. An October 11, 2006 VA examination report reflects the Veteran's complaints of exudation, ulcer formation, itching and crusting. He said the symptoms occurred intermittently and as often as semi-annually, with each occurrence lasting up to one year. He said he had one attack in the prior year, which he treated with Lotrimin antifungal cream. He only used topical medication. He said that the skin disease involved areas exposed to the sun, including the hands. He said he had a cancerous growth surgically removed from the left forearm in 2003. On objective examination, there were no signs of skin disease present. The diagnoses of tinea unguium and tinea pedis remained intact based on the Veteran's subjective complaints. Importantly, the examiner found no objective signs of disease present. Based on a review of the evidence, there is no basis for an evaluation in excess of 10 percent for the Veteran's tinea unguium and tinea pedis prior to October 12, 2006. Private treatment records and VA examination showed no evidence of tinea or fungus on his feet let alone an area affecting 20 percent or more of the body or exposed areas. Furthermore, according to the Veteran's subjective reports, only topical medications were used. There is no evidence of any systemic therapy such as corticosteroids or other immunosuppressive drugs. For these reasons the preponderance of the evidence is against finding entitlement to an evaluation in excess of 10 percent prior to October 12, 2006. No other diagnostic code provides a basis for assignment of rating in excess of 10 percent for tinea unguium and tinea pedis. The Veteran's service-connected skin disorder did not involve any scars or lesions during this time period; therefore, Diagnostic Code 7800-7805 are inapplicable. The Board has also considered the Veteran's lay statements. The appellant is competent to report his observations with regard to his skin, including any episodes of flare-ups and treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements consistent with the rating assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific medical examination findings of trained health care professionals who can discern the differences between different skin disorders to be of greater probative weight than the Veteran's more general lay assertions. In reaching the above determination, the Board has considered the potential application of various other regulatory provisions, including 38 C.F.R. § 3.321(b)(1) governing those exceptional cases where a schedular evaluation is found to be inadequate. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In the case at hand, however, the Rating Schedule adequately contemplates the nature and extent of the Veteran's tinea unguium and tinea pedis symptomatology. Based on a review of the entire evidence of record, the Board finds that the disability picture presented by the Veteran's dermatology disorder is appropriately contemplated by the Rating Schedule. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. Id. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER A 10 percent evaluation for tinea unguium and tinea pedis is restored, effective June 1, 2008. Entitlement to an evaluation in excess of 10 percent for tinea unguium and tinea pedis prior to October 12, 2006 is denied. REMAND The Veteran last underwent a VA dermatology examination for the purposes of evaluating his tinea unguium and tinea pedis in October 2006. Given the passage of more than six years since that examination, a more contemporaneous VA examination is appropriate prior to a final adjudication of the Veteran's claim. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following actions: 1. Any outstanding, pertinent private and/or VA treatment records should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. All attempts to procure such records must be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran must also be afforded a VA skin examination by a physician to assess the current severity of his tinea unguium and tinea pedis. The Veteran's claims folder and access to Virtual VA must be made available for the physician's review prior to the entry of any opinion. The physician must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating skin disabilities, the physician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his tinea unguium and tinea pedis. The physician must provide the percentage of the entire body, as well as the percentage of exposed areas, affected by tinea unguium and tinea pedis alone, and also the duration of any intermittent systemic therapy required to treat the condition. The physician must specifically address the etiology of any other skin disorder affecting the appellant. That is the examiner must address whether it is at least as likely as not, i.e., is there a 50/50 chance, that such any other skin disorder is related to service, or whether any other skin disorder is due to tinea unguium and tinea pedis. In so doing the examiner must address whether tinea unguium and tinea pedis aggravates any other diagnosed skin disorder. If it is determined any other skin disorder is not associated with the Veteran's service or service-connected tinea unguium and tinea pedis, the physician must attempt to distinguish symptoms due to tinea unguium and tinea pedis from any other diagnosed skin disorder. If the symptoms cannot be differentiated, the physician should so state in the report, and explain why. A complete and well reasoned rationale for any opinion expressed must be provided. 3. The Veteran is to be notified 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 the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. 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. The RO must ensure that the examiner documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs