Citation Nr: 1329022 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-37 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for tinea corpora on trunk, with tinea barbae and folliculitis on face. ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran's active service extended from August 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in San Diego, California, which assigned an initial noncompensable rating for tinea corpora on trunk, with tinea barbae and folliculitis on face, effective September 1, 2004. The Veteran thereafter filed a timely Notice of Disagreement (NOD) in August 2005. In a May 2006 rating decision the Los Angeles, California RO granted a 30 percent rating effective August 15, 2005. By rating decision dated in December 2006, the RO granted an earlier effective date of September 1, 2004, for the assignment of a 30 percent rating for the Veteran's skin condition. In a February 2007 communication, the Veteran continued to request a higher rating (60 percent) for the service-connected skin condition. In an August 2007 rating decision, the Los Angeles RO continued the assigned 30 percent evaluation. An NOD was received in September 2007; a Statement of the Case (SOC) was issued in August 2009; and in October 2009, the Veteran submitted a VA Form 9. Given the procedural history outlined above, it is clear that the Veteran has continuously pursued a higher rating for his skin condition since the initial rating; as such, review of this case is governed by the standards set forth in Fenderson v. West, 12 Vet. App. 119 (1999) (Where a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, such as the situation in this case, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal.) The Veteran initially requested a Travel Board hearing in connection with this appeal; however, in October 2009, the he expressly withdrew that request. FINDING OF FACT Resolving reasonable doubt in his favor, throughout the entire appeals period, the Veteran's service-connected skin condition has required constant or near-constant constant or near-constant use of a variety of medications, including topical steroid creams (triamcinolone cream), ammonium lactate, nystatin cream (an antifungal antibiotic), and atarax (an oral antihistamine), CONCLUSION OF LAW The criteria for an initial 60 percent rating for tinea corpora on trunk, with tinea barbae and folliculitis on face have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 As service connection for tinea corpora on trunk, with tinea barbae and folliculitis on the face has been granted and an initial rating and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Hartman v. Nicholson, 483 F. 3d 1311 (Fed Cir. 2007). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains service treatment and VA medical records. The Veteran has not identified additional relevant records that need to be obtained. The Veteran was provided multiple examinations. On review, the evidence is adequate for rating purposes. The appellant was provided the opportunity to meaningfully participate in the adjudication of the claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Entitlement to a higher initial evaluation for tinea corpora on the trunk, with tinea barbae and folliculitis on the face Applicable Laws and Regulations The Veteran contends that his service-connected chronic skin condition is more disabling than currently evaluated. He specifically contends that treatment of this disability has required the use of constant medication (a topical corticosteroid) throughout the entire appeals period. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of 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. See 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). The Veteran's service-connected skin disability is evaluated as 30 percent disabling under 38 C.F.R. § 4.118, DC 7806 (dermatitis or eczema). See 38 C.F.R. § 4.118, DC 7806 (2012). DC 7806 provides a 30 percent rating for dermatitis when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas of the body is affected or when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is provided under DC 7806 for dermatitis when more than 40 percent of the entire body or exposed areas of the body is affected or when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs has been required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806 (2012). The Board notes that, effective October 23, 2008, VA revised the diagnostic criteria for evaluating skin disabilities so that they would reflect more clearly VA's policies concerning the evaluation of scars. Specifically, the amendments concern 38 C.F.R. § 4.118, Diagnostic Codes (DC's) 7800-7805. In this case, however, these DC's are not for application as the Veteran's disability does not include scars. The Board also notes that the revised rating criteria are inapplicable to this claim because the Veteran's service-connected disability has been rated as dermatitis under DC 7806 which was not affected by the most recent regulatory changes to the DC's for evaluating skin disabilities. See 73 FR 54708 (Sept. 23, 2008). Factual Background The Veteran's initial claim for service connection for a skin condition was received in April 2004, at which time he was still on active duty (he separated from active duty in August 2004). Service treatment records, including an April 2004 Report of Medical History show treatment for "severe facial rash/fungal infection in 2001-2002; upper torso rash on sides and arm pits in 2003." Service treatment records dated in March and April 2004 also reflect treatment for a rash (and a history of rashes for 10 years), a diagnosis of contact dermatitis, and treatment requiring an oral antihistamine (atarax) and triamcinolone acetonide cream (or TAC, a topical corticosteroid). An April 2004 examination conducted by the VA outpatient clinic in San Diego noted "reoccurring tinea corpora skin rashes over his body, left axilla, and neck, and chin area," with flare-ups or recurrences about every 6 to 8 months, which are responsive to triamcinolone acetonide cream. A September 2004 Agent Orange/Persian Gulf Registry Examination noted a recurrent rash (onset of September 2001) which resolved with use of triamcinolone acetonide cream, but which subsequently reoccurred. The pertinent diagnosis was history of pruritic dermatitis which responds to prescription TAC. The Veteran underwent a VA skin examination in January 2006 and reported having a reoccurring rash approximately twice a month with redness and irritation of the chin. He stated that he used a medicated cream (the Veteran was unable to recall the name of the medication) for relief. He also described rashes on his torso (pruritic), hands, bilateral sides of trunk, and back, which were also treated with medicated cream and which reoccurred every two to four months. Objectively, there was decreased pigmentation and discoloration on the torso; thickening of the bilateral cheeks; and discolored, scattered hyperpigmented areas on the dorsum of the bilateral hands. The percent of exposed areas affected and total body area affected was less than 5%. Symptoms included intermittent itching and rash, and constant pigment changes. Current treatment included triamcinolone acetonide 0.1% cream and ammonium lactate 12% ointment ("6 weeks or more"). The pertinent diagnosis was likely tinea corporis/tinea versicolor without evidence of folliculitis barbae. A July 2006 VA treatment note shows complaints of rashes to the face and sides since 2000. VA treatment records dated from October 2006 to June 2007 reflect current active medications for treatment of "dry skin" and "dermatitis," which include ammonium lactate 12% lotion and triamcinolone acetonide 0.1% cream. In a February 2007 statement, the Veteran requested that a 60 percent evaluation be assigned based on his constant, or near-constant use of corticosteroids for treatment of his skin condition since 2004. The Veteran underwent another VA skin examination in September 2007 and reported that he initially developed a rash in the chin area in 2001; a similar rash later developed in 2003/2004. He stated that his symptoms were controlled with triamcinolone acetonide 0.1% cream. Current skin symptoms included painful bumps in the beard area and itchy rash of the upper cheeks and torso area. Objectively, the VA examiner noted that there had been skin disease treatment in the past 12 months (for dermatitis), which included daily and constant use of a topical corticosteroid, namely, triamcinolone acetonide 0.1% cream. Less than 5 percent of the exposed areas and total body area were affected. Significant examination findings included a dry scaly area on the left lateral torso, flat brown lesions on the upper cheeks, and bumps/shave scarring in the chin and beard areas. The pertinent diagnoses were mild tinea corporis and mild pseudofolliculitis barbae. The Veteran underwent another VA skin examination in May 2009 and reported that he had initially developed a rash in the chin area in 2001; he stated his symptoms were currently controlled with triamcinolone acetonide 0.1% cream. He also complained about dark spots on both sides of his face and left thorax which appear when he does not use the prescribed cream. Course of condition was described as "constant," with burning and itching in the torso area. Objectively, the VA examiner noted that there had been skin disease treatment in the past 12 months (for dermatitis), which included daily and near-constant use of a topical corticosteroid, namely, triamcinolone acetonide 0.1% cream. Less than 5 percent of the exposed areas and total body area were affected. The pertinent diagnosis was mild dermatitis. In July 2010, the Veteran's treating VA physician submitted a letter stating "from the time of my first visit with [the Veteran] in 2006, the review of systems affirmed the presence of rashes which, by that time, he had experienced for 6-7 years (since 1999-2000). Moreover, he has been on dermatological medications (his derm medications include triamcincolone and ammonium lactate) as far back as the outpatient pharmacy record permits me to view (10-06)." The Veteran underwent a VA (Disability Benefits Questionnaire) skin examination in July 2013. The pertinent diagnosis was tinea corpora. Treatment included nystatin cream - an antifungal antibiotic. Total exposed body area affected was less than 5%. The examiner noted that the Veteran's claims file was not available for review. In sum, the examiner stated that the Veteran had a history of recurring tinea corpora infections, which improved with the use of medicated creams. Today's examination noted a dark rash on the lower border of the left breast which supported a finding of tinea corpora. VA outpatient treatment records dated from April 2013 to June 2013 (contained in the Virtual VA claims file) reflect ongoing treatment for skin rashes. Specifically, an April 2013 treatment report showed that the Veteran was suffering from rashes on the left chest, right face, and behind the ear, and that the prescribed cream (triamcinolone) was no longer working. The medication lists dated in April and June 2013 confirm that, in addition to Nystatin, triamcinolone cream and ammonium lactate lotion were still being actively prescribed for the Veteran's dermatological problems. Analysis The Board acknowledges the Veteran's assertions that his service-connected skin condition is more disabling than currently evaluated and finds that the competent evidence supports these assertions. Specifically, the medical and lay evidence shows that, since 2004, the Veteran's service-connected skin condition has required constant or near-constant use of a variety of medications, including topical steroid creams (triamcinolone cream), ammonium lactate, nystatin cream (an antifungal antibiotic), and atarax (an oral antihistamine), such that a 60 percent rating is warranted under DC 7806. See 38 C.F.R. § 4.118, DC 7806 (2012). Indeed, the January 2006, September 2007, May 2009, and May 2009 VA skin examinations all confirm frequent/ongoing topical steroid use for treatment of his service-connected skin condition. The July 2010 statement from the Veteran's VA treating clinician likewise confirms that he has been on continous topical steroids and ammonium lactate since at least October 2006 (or, as she stated, as far back as the outpatient pharmacy record would permit her to view). Here, the Board notes that had the VA physician had been able to review the Veteran's complete medical history/clinical record (including 2004 service treatment records), she would have discovered a positive history of topical steroid use dating back to at least 2004. See March/April 2004 Service Treatment Records and September 2004 Persian Gulf Registry Examination. In light of the above medical evidence, as well as the Veteran's competent assertions that he has used topical steroids in a near-constant manner since 2004, the Board finds that the service-connected disability more closely approximates the criteria for a 60 percent evaluation under Diagnostic Code 7806 for the entire period on appeal. In so finding, the Board acknowledges that the most recent VA/DBQ skin examination in 2013 noted that the Veteran was only taking one medication for his skin condition, namely, nystatin. However, this finding is inconsistent with the contemporaneous VA medications list which clearly shows that the Veteran was actively prescribed no fewer than three medications for his skin condition - namely, TAC (topical steroid), ammonium lactate, and nystatin. The Board finds the current VA treatment records/medication list to be more probative as to the current nature/severity of the skin condition than the 2013 VA examination, which was conducted without a review of the claims file. The Board has considered whether an even higher rating may be assigned under any other applicable rating criteria (as a 60 percent evaluation represents the maximum rating available under Diagnostic Code 7806), but finds that the medical evidence does not show systemic manifestations such as to warrant a higher rating under Diagnostic Code 7817, pertaining to exfoliative dermatitis. 38 C.F.R. § 4.118, Diagnostic Code 7817. There are no other relevant Diagnostic Codes for application. In sum, the Board finds that a higher 60 percent rating is warranted throughout the entire period on appeal. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. Consideration also has been given to whether the schedular evaluation is inadequate, thus requiring referral of this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to this service-connected disability. 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the claim must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The Veteran is now in receipt of the maximum rating available under Diagnostic Code 7806. An evaluation in excess of 60 percent is provided for certain manifestations of exfoliative dermatitis under Diagnostic Code 7817, but the evidence reflects that those manifestations are not present in this case. The Veteran's symptoms of tinea corpora/tinea barbae with folliculitis as demonstrated in the medical evidence are contemplated in the rating criteria. The lesions, itching, and surface area affected, etc., are all relevant considerations contemplated by the schedular rating criteria. Hence, the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Also, all of the evaluation and treatment the Veteran has received for his skin condition has been on an outpatient basis, not as an inpatient, much less frequent inpatient. Therefore, extra-schedular referral is not warranted in this instance. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Lastly, a claim for a total disability rating due to individual unemployability (TDIU) is implied in a claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the evidence of record reflects that the Veteran is currently employed and has not asserted that he is unemployable because of his skin condition. Accordingly, the issue of TDIU is not raised in this case. ORDER Entitlement to a 60 percent rating for tinea corpora on trunk, with tinea barbae and folliculitis on face is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs