Citation Nr: 1325794 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-20 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for tinea pedis. 2. Whether new and material evidence has been received to reopen a claim for service connection for a low back disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for genital warts or residuals thereof. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2013, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's virtual VA folder. Following the issuance of the last supplemental statement of the case in July 2012, the Veteran submitted, in May 2013, additional evidence in support of his claim for service connection for a low back disability. This evidence, consisting of a December 2012 private medical record, was accompanied by a written waiver of review by the Agency of Original Jurisdiction (AOJ) in the first instance. 38 C.F.R. § 20.1304(c). The underlying issue of entitlement to service connection for a low back disability is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Tinea pedis affects less than five percent of the Veteran's entire body and zero percent of exposed areas; systemic therapy was not required at any point during the appeal period. 2. In an April 1995 rating decision, the RO denied the Veteran's claim for service connection for genital warts. It was held that a current disability was not shown. The Veteran was notified, but did not perfect an appeal of this decision. 3. Evidence received since the RO's April 1995 adverse decision relates to the basis of the prior denial and the claim for service connection for genital warts and residuals thereof is reopened. 4. In an April 1995 rating decision, the RO denied the Veteran's claim for service connection for a low back disability. It was held that no current disability was present. The Veteran was notified and did not perfect an appeal of this decision. 5. Evidence received since the RO's April 1995 adverse decision relates to the basis of the prior denial and the claim for service connection for a low back disability is reopened. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for tinea pedis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7806 and 7813 (2012). 2. The April 1995 rating decision denying service connection for genital warts and a low back disability is final. 38 U.S.C.A. § 7105 (West 2002). 3. New and material evidence has been received to reopen the claim for service connection for genital warts. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In view of the Board's decision to reopen and remand the claims of entitlement to service connection for genital warts and a back disability, there is no need to address VA's compliance with the Veterans Claims Assistance Act of 2000 with respect to these claims. Regarding the claim for service connection for hypertension, as is explained below, this claim has been withdrawn. As for a compensable rating for tinea pedis, since the appellate issue (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in December 2005), another VCAA notice is not required. VAOPGCPREC 8-2003. The Board finds that all necessary assistance has been provided to the appellant and the RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claim for a compensable rating for tinea pedis. VA has obtained identified medical evidence and afforded the appellant VA examinations. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination reports on file contain sufficient findings with which to properly evaluate the appellant's service-connected tinea pedis and are thus deemed adequate for rating purposes. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination reports are predicated on a physical examination and contain the findings necessary to evaluate the appellant's tinea pedis under the applicable rating criteria. On review, 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). II. Compensable Rating for Tinea Pedis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The applicable rating criteria for dermatophytosis (including tinea pedis) reveals that it is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2012). In this case, the Veteran's skin condition does not involve his head, face, or neck; rather, it involves his feet and toes. Additionally, his predominant disability is not scars. Accordingly, his disability is appropriately evaluated under the criteria for dermatitis (Diagnostic Code 7806). 38 C.F.R. § 4.118 was amended during the pendency of this appeal. 73 Fed. Reg. 54,708 - 54,712 (October 23, 2008). Pertinent to this appeal, this regulatory amendment did not change the rating criteria for Diagnostic Code 7806. However, even if it had, the amended criteria are only applicable to "applications for benefits received by VA on or after October 23, 2008." Id. at 54,708. Thus, there is no impact on the Veteran's current claim for benefits, which was received by VA in August 2005. Under Diagnostic Code 7806, a noncompensable rating is assigned where less than 5 percent of the entire body is involved or less that 5 percent of an exposed area is affected, and; no more than topical therapy is required during a 12 month period. A 10 percent rating will be assigned where 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 are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where 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 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected; or where there is 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, Diagnostic Code 7806. The pertinent facts in this appeal include an October 2004 VA outpatient treatment record that shows that the Veteran was started on clotrimazole for tinea pedis of his feet. An August 2005 VA outpatient record notes that the Veteran had tinea pedis on both feet and was taking clotrimazole. The Veteran reported at a VA examination in October 2006 that his tinea pedis was somewhat persistent with occasional flares which do not seem to resolve. He described a burning and itching sensation and reported being treated in service with various topical and possibly oral medication. He denied the use of immunosuppressive medication, systemic corticosteroids or "uv". Findings revealed a maceration between the 4th and 5th toe webs bilaterally and diffuse scaling plantar surface, approximately "4% bsa", non exposed. The examiner diagnosed the Veteran as having tinea pedis and said it was a common condition which may be exacerbated by warmth and occlusion. He said the percent of total body covered was less than 5%. At a VA skin examination in March 2011, the Veteran said he was presently using Econzole 1% cream daily for his tinea pedis which his doctor prescribed in February 2011. Symptoms at that time revealed maceration of tissue between the toes and itching. Findings revealed maceration between the 4th and 5th toe and minimal evidence of fungus between the left 4th and 5th toes. There were no systemic symptoms and no treatment with a corticosteroid or an immunosuppressive. Also, there was no involvement of toenails. In written argument in July 2012, the Veteran's representative at the time argued that the Veteran's daily use of Econazole Nitrate 1% should be considered in the evaluation criteria for his tinea pedis. He enclosed information downloaded from the internet regarding Econazole Nitrate 1% cream which was noted to be an antifungal agent. The Veteran testified at a Board video conference hearing in May 2013 that his right foot was worse than his left and he was not receiving VA treatment at that time. He reported that he was taking a cream medication for the condition and had submitted all pertinent records. The above evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 10 percent rating under Diagnostic Code 7806. The area affected was less than between 5 and 20 percent of either the entire body or the area affected. This is evident by the March 2011 VA examiner's report that the total body area covered was less than 5%. Moreover, the evidence does not show that the Veteran has undergone systemic therapy such as corticosteroids or other immunosuppressive drugs. In this regard, while consideration had been given to the Veteran's request, by way of his representative's written argument in July 2012, that his daily use of Econazole Nitrate 1% be considered in the evaluating criteria, this medication does not meet the criteria for a 10 percent rating requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive therapy. Rather, the internet information that his representative submitted to VA describes the cream as a topical antifungal agent and the Veteran has not contended otherwise. Moreover, both the October 2006 and March 2011 VA examiners reported that the Veteran was not taking corticosteroids or immunosuppressives, and, the March 2011 VA examiner noted that there were no systemic symptoms. Thus, while the Veteran is competent to report his medical treatment and symptoms, and his reports are deemed credible, see Jandreau v. Nicholson,492 F. 3d 1372, 1377 (Fed. Cir. 2007), none of the symptoms that he described, including burning and itching, warrant a compensable rating under Diagnostic Code 7806 or any other potentially applicable diagnostic code. The Board also notes that it finds no basis for inferring a claim of entitlement to a total disability evaluation based on individual unemployability (TDIU) at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not contended, and the evidence does not show, that he has been unemployed at any point during the course of this appeal due to his tinea pedis. Finally, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's tinea pedis. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of having constant tinea pedis and itching and requiring use of a topical antifungal cream, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a compensable rating at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial compensable rating for tinea pedis must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). III. Claims to Reopen Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this appeal, the RO initially denied the Veteran's claim for service connection for genital warts and a low back disability in April 1995. The Veteran did not perfect an appeal of this decision and it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200. This is the last final rating decision on this matter on file. The basis of the denial with respect to genital warts was that there was no evidence of residual disability, and the basis of the denial with respect to a low back disability was that there was no evidence of current disability. While it appears that the RO reopened the claims in April 2007 and reviewed the claim on the merits, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, as in this case, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Genital Warts or Residuals Thereof The evidence on file in April 1995 included the Veteran's service treatment records showing treatment for a groin rash in August and September 1977 (diagnosed as lichen simplex chronicus), and venereal warts/condyloma accuminata in December 1986 (treated with podphyllin treatment and then liquid nitrogen). A January 1988 record shows that the Veteran was seen for dry skin on his penis and was assessed as having probably dry skin and scar tissue secondary to treatment received earlier. Additional records show treatment for a groin mass from June to August 1988, and for probable xerosis in the groin area in February 1989. The February 1989 record shows the appearance of scarring at the penis frenulum. The evidence also includes a VA general examination report in September 1994 that contains the Veteran's report that he starting using Westcort Ointment and Moisturel after the removal of his warts by liquid nitrogen and that if he doesn't use this medication, he will have an eruption at the penis. He was assessed as having history of warts removed without any recurrence. The evidence on file after April 1995 includes an October 2006 VA examination report relaying the Veteran's report of no treatment at that time for genital warts and no genital warts. The examiner reported that condyloma accuminatum as per history was due to human papilloma virus and the time between exposure and development of symptoms was variable. He raised the possibility that it began during service by stating that although the Veteran may have acquired this in service, it was not directly related to service. The evidence also includes a March 2011 VA examination report showing no penile lesions at that time and diagnosing the Veteran as having history of condyloma acuminata. Also on file is the Veteran's Board May 2013 hearing testimony that he has had recurrences of genital warts since service which he treats with over-the-counter medication, and a February 2011 private treatment record from Stuart A. Shapiro, M.D., similarly containing the Veteran's report that he uses hydrocortisone cream (0.1%) for venereal warts which wasn't helping, and genitalia findings of flaky, erythematous skin near the head of the penis. In addition, the report contains a diagnosis of rash and other nonspecific skin eruption. When considering the above-noted additional evidence together with evidence previously on file, the Board finds that the additional evidence received bears substantially upon the specific matter under consideration. This is in view of the April 1995 denial in which the RO found that the Veteran had no residuals of his inservice treatment for condyloma accuminata of the penis in 1986, and the post April 1995 evidence of continuing venereal warts as noted on the February 2011 private treatment record and by the Veteran's hearing testimony, as well as findings and a diagnosis in February 2011 suggestive of possible ongoing residuals. Accordingly, the Board finds that the additional evidence received after April 1995 constitutes new and material evidence to reopen the claim of entitlement to service connection for genital warts or residuals thereof. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Low Back Disability The evidence on file in April 1995 consisted of the Veteran's service treatment records showing various complaints of low back pain including following a motor vehicle accident in January 1983 at which time the Veteran was diagnosed at this time as having low back strain. Also on file was a September 1994 VA examination report diagnosing history of lumbosacral discomfort without history of or clinical evidence to suggest any lower extremity radiculopathy. The basis of the April 1995 denial was that the evidence (i.e., the September 1994 VA examination report) showed that the Veteran did not have a current low back disability and there was no evidence to the contrary. However, evidence submitted after April 1995 includes the recently submitted medical record from Ronald L. Fraser, M.D., dated in December 2012, noting that the Veteran had a long history of low back pain which was service related. This record goes on to state that the Veteran presently had low back strain, herniated nucleus pulposus, and some nerve root irritation, and contains Dr. Fraser's opinion that it "stems back from his old spine injury". When considering the above-noted additional evidence together with evidence previously on file, the Board finds that the additional evidence received bears substantially upon the specific matter under consideration. That is, it shows that the Veteran has a present low back disability possibly related to service. Accordingly, the Board concludes that the criteria for reopening the claim for service connection for a low back disability are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER An initial compensable rating for tinea pedis is denied. The application to reopen the claim for entitlement to service connection for genital warts or residuals thereof, is granted. The application to reopen the claim for entitlement to service connection for a low back disability is granted. REMAND Now that the Veteran's claims of entitlement to service connection for genital warts or residuals thereof, and a low back disability, have been reopened, additional development is necessary in order to properly decide the underlying merits of these claims. This is in light of evidence showing the presence of the disabilities being claimed, and a possible nexus to service. Thus, a remand for a VA examination regarding the nature and etiology of the current genital and low back disabilities is warranted. 38 U.S.C.A. § 5103A(d). In specific regard to genital warts or residuals thereof, all residuals should be considered to include scarring. This is in light of the January 1988 service treatment record showing that the Veteran had dry skin on his penis and scar tissue secondary to "treatment received earlier". Additionally, on remand, updated private and/or VA treatment records should be obtained and associated with the record. Currently there are no VA records on file subsequent to 2008. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159. Also, private treatment records from Brazos Orthopaedics, L.L.P. in 2011 and 2012 indicate that a lumbar magnetic resonance imaging (MRI) had been ordered, but there is no MRI report on file. This report and any other pertinent private outstanding records should be obtained. Id. Accordingly, the case is REMANDED for the following action: 1. Updated private and VA treatment records should be requested and associated with the claims file. The last VA treatment records on file are dated in 2008, and in terms of private records, records from Brazos Orthopaedics, L.L.P. in 2011 and 2012 indicate that a lumbar magnetic resonance imaging (MRI) had been ordered, but there is no MRI report on file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of his claimed genital warts or residuals thereof, if any, to include skin residuals such as scarring. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records and the Veteran's lay statements, and offer comments and opinions addressing whether it is at least as likely as not (a probability of 50 percent or greater) that any current general wart disability or residuals thereof is casually related to his active military service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of his claimed low back disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly the service treatment records and the Veteran's lay statements, and offer comments and opinions addressing whether it is at least as likely as not (a probability of 50 percent or greater) that any current low back disability is casually related to his active military service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. If upon completion of the above actions any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant and his representative have 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs