Citation Nr: 1335697 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-16 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a higher (compensable) rating (evaluation) for bilateral tinea pedis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1988 until February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A report of contact from March 2012 shows that the Veteran called the RO and indicated that he no longer wished to pursue his appeal for entitlement to TDIU. The Veteran was informed that to effectively withdraw his appeal he was required to submit a written statement. The Veteran has not submitted such a statement and the matter remains on appeal before the Board. A review of the Virtual VA paperless claims processing system shows documents that relate to, and have been considered as part of the present appeal, including VA Medical Center treatment records. The issue of entitlement to TDIU 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. FINDING OF FACT Throughout the entire rating period on appeal, bilateral tinea pedis has affected less than five percent of the entire body and has only required the use of topical medications for treatment. CONCLUSION OF LAW The criteria for a compensable rating for bilateral tinea pedis have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in August 2005, prior to the initial adjudication of the increased rating claim on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). For an increased-compensation claim, at a minimum VA must notify the claimant that, to substantiate a claim the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, such a notice was provided in the August 2005 letter to the Veteran. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment and records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran was afforded multiple VA examinations, including that of September 2012 during which the examiner conducted a physical examination of the Veteran, recorded lay statements from the Veteran, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on the examination that are consistent with the record. While the record does not indicate whether the VA examiner reviewed the Veteran's claims file, the Board notes that because the examination was undertaken to assess the Veteran's current level of symptomatology, the lack of a forensic review of past skin treatments does not render the VA examiner's opinions inadequate. The Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating for Bilateral Tinea Pedis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was previously awarded service connection and assigned a disability rating in a prior rating decision. However, on a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here, as the evidence discussed below shows, service-connected tinea pedis has not significantly changed during the period on appeal, and a uniform evaluation is warranted. The Veteran's tinea pedis is rated under 38 C.F.R. § 4.118 Diagnostic Code (DC or Code) 7813-7806 (2013). Hyphenated diagnostic codes are used when a rating under one Code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. In this case DC 7806 is used for rating the Veteran's tinea pedis based on the criteria for dermatitis or eczema, while DC 7813 represents dermatophytosis (including tinea pedis). Under DC 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) is rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7813. Here, the Veteran is currently rated under DC 7806, which specifies that a noncompensable rating is assigned where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy has been required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. A 10 percent rating is called for 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 have been required for a total duration of less than six weeks during the past 12-month period. Id. 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; systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. Finally, a 40 percent rating is called for where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with service-connected tinea pedis including symptoms which are observable such as changes in the skin, pain, itching, and irritation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the Veteran's tinea pedis merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Veteran contends that tinea pedis has been compensably disabling throughout the entire period on appeal, requiring the use of topical applications, oral medications. The Veteran has also indicated that the disorder has caused extreme flaking and cracking of skin, and bleeding. To the extent that these are observable treatments and symptoms, the Veteran's endorsements are competent. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. After reviewing the entire claims file, the Board finds that the Veteran's tinea pedis has not been compensably disabling for any period on appeal. The Board finds that tinea pedis has affected less than five percent of the entire body and has only required the use of topical medications for treatment. On VA examination in September 2005, the Veteran's feet revealed mild changes of tinea pedis with dryness, scaling, and maceration between the 4th and 5th digits of each toe. Treatment was on an as-needed basis and did not include corticosteroid, immunosuppressive drugs, ultraviolet B light treatment, psoralen (methoxsalen) plus ultraviolet A light treatment, or electron beam therapy. The Veteran had no functional impairments, systemic symptoms, malignancy or neoplasm, urticaria, vasculitis, erythema multiforme, acne, alopecia, scarring or disfigurement. The total area of the body affected was less than one percent, and zero percent of the exposed area of the body was affected. In February 2007, the Veteran was seen at a VA facility for treatment of tinea pedis, among other skin disorders. The Veteran presented with worsening skin-related symptoms including excessive itchiness with skin breakdown and excoriations. At that time, the Veteran had been using clotrimazole, selenium, and triamcinolone for treatment. VA treatment record from May 2010 shows that the Veteran complained of itching in the groin; saying that a rash in that area had worsened over the last several days. He also stated that he had no rash elsewhere on the body, and a physical examination confirmed the lack of rash or lesions on the body. A VA podiatry treatment note from November 2011 indicates that the Veteran endorsed having painful itchy calluses. The skin on the feet was hyperkeratotic throughout the foot, with scaly patchy skin consistent with a fungal infection. The Veteran was prescribed topical clotrimazole - a topical antifungal medication, and urea cream. On VA examination of the skin in September 2012, the Veteran described scaling, some interdigital cracking and daily, and he did not have any scarring or disfigurement of the head, face, or neck. His use of medications in the previous 12 months did not include the use of corticosteroids or immunosuppressives, but did include constant/near-constant use of clotrimazole. The total body area affected by infections of the skin was less than 5 percent, with none of the exposed area of the body affected. The examiner opined that the Veteran's skin condition did not impact his ability to work. After reviewing all of the evidence, lay and medical, the Board finds the Veteran's tinea pedis disability has not reached or approximated the level of a compensable disability. Specifically, medical examinations have shown that the total body area affected by infections of the skin was less than 5 percent, and treatment has been limited to topical applications. Without evidence of at least 5 percent of the entire body, or at least 5 percent of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs have been required for a total duration of less than six weeks during the past 12-month period, a compensable schedular rating is not warranted. 38 C.F.R. § 4.118, DC 7806. The Veteran has contended that tinea pedis has spread to other parts of his body, including his head, legs, chest, and back. For instance, in the July 2005 claim, the Veteran stated that the skin disorder had spread to the legs. Later, in a December 2005 statement the Veteran indicated that having reported skin problems of the head to the September 2005 VA examiner, but such endorsement of head symptomatology was ignored. On correspondence in 2007 and 2009 the Veteran endorsed the spread of skin symptoms to the chest and back. Additionally, the Veteran has indicated having been given "oral pills" and in April 2009 the Veteran endorsed the use of corticosteroids. The Veteran is competent to report the use of topical medications, and that he has been prescribed oral medications. The Veteran is also competent to report what he has been told by treating physicians regarding the nature of the medications and treatments being given. However, a thorough review of the claims file does not support the Veteran contentions either that he has been prescribed corticosteroids, or immunosuppressive drugs for treatment of tinea pedis. Of greater probative value than the Veteran's statements on this matter, is the September 2012 VA examination report which indicated that the only treatment the Veteran had received in the preceding 12 months was clotrimazole - which, again, is an antifungal agent. With regard to the Veteran's contentions that tinea pedis has spread to other areas of the body, the Board notes that the September 2012 VA examiner examined the Veteran's entire skin area before opining that less than 5 percent of it was affected by a skin infection. The Board also notes that the Veteran's only endorsements of skin symptomatology spreading to the back, chest, legs and head, have been made in connection with the claim for an increased rating. Here, the Board has considered the Veteran's endorsement that a compensable area of the body is affected by tinea pedis, however when the Board finds the objective opinion of the September 2012 VA examiner to be more probative in this matter. In addition, the Board acknowledges that a skin condition, such as tinea pedis, waxes and wanes in severity, and may indeed affect other areas of the body. Review of the VA records, for instance, document a skin condition in the groin area. These records, however, do not suggest that the skin condition, even when most active, affect 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. The Veteran has also contended that skin symptoms around the genitals are related to service-connected tinea pedis, and on VA treatment in July 2005, a physical examination revealed erythematous eruption with overlying fine scale over a majority of the plantar surface of the feet and the inguinal/scrotal area. Service connection for symptomatology about the groin has been separately adjudicated. Nonetheless, the Board notes that following VA examination in April 2012 the examiner opined that the Veteran's current diseases affecting the genitals - including herpes lesions and syphilis - were not related to tinea pedis. The Board has considered whether a compensable rating may be warranted under a different Code, and finds that one is not. The Veteran does not have scarring, as rated under DCs 7800, 7801, 7802, 7804, and 7805. Under the remaining potentially applicable Codes, a compensable rating is not called for where less than 5 percent of the body is affected, and treatment is limited to topical applications. See 38 C.F.R. § 4.118, DC 7816 (psoriasis), DC 7817 (exfoliative dermatitis), DC 7819 (infections of the skin not listed elsewhere), DC 7821(cutaneous manifestations of collagen-vasular disease not listed elsewhere), DC 7822 (papulosquamous disorders not listed elsewhere), DC 7824 (disease of keratinization). The Board finds that the Veteran's tinea pedis has not been compensably disabling throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected tinea pedis. 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. 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. If the criteria reasonably describe the claimant'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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of area of the skin affected and the nature of treatment for the disability; thus, the demonstrated manifestations - namely skin irritation and topical treatment - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. Furthermore the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's tinea pedis, and referral for consideration of an extra-schedular evaluation is not warranted. ORDER A higher (compensable) initial evaluation for bilateral tinea pedis is denied. REMAND Entitlement to TDIU The Veteran contends that service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The Veteran's service-connected disabilities are PTSD, a low back condition, fractured nose with deviated nasal septum, and bilateral tinea pedis. The Veteran has met the threshold criteria for entitlement to TDIU during only a portion of the period on appeal under 38 C.F.R. § 4.16(a) (2013). Specifically, the Veteran's claim dates to July 2005, at which time the Veteran's total combined disability rating was 70 percent, with at least one disability (in the Veteran's case, PTSD) rated at more than 40 percent disabling. However, since May 1, 2006, the Veteran's total combined disability rating has been less than 60 percent and without a single service-connected disability ratable at 60 percent. It is VA's policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the VA Director of Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16 (2013). It is unclear from the record whether the Veteran is currently employed, and if not, for what reason. Recent VA treatment records show that the Veteran is not working regularly. An October 2010 record reflects that the Veteran had been "just hired at VA in housekeeping," and subsequent records indicate that the Veteran worked only part time in his father's tire shop. Nonetheless, in September 2011 the Veteran reported that he was paid for working no days in the prior 30 day period. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Board finds that additional development must be conducted before the Board can properly adjudicate the claim of TDIU. The Veteran must be contacted in order to obtain a full employment history throughout the period on appeal (i.e., since July 2005). Thereafter, a VA examination should be conducted to help determine whether the Veteran's service-connected disabilities caused him to be unable to secure and follow a substantially gainful occupation. Furthermore, regardless of the results of the VA examination, the RO should refer the case to the VA's Director of Compensation and Pension with regard to whether TDIU may be granted on an extraschedular basis for any portion of the period on appeal during which the schedular criteria for TDIU were not met. 38 C.F.R. § 3.321(b)(1) (2013); Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all relevant VA and non-VA treatment records as well as any other evidence which is relevant to the claim for TDIU, but not associated with the record. Once identified, appropriate steps should be taken to associate any relevant records with the claims file. 2. Ask the Veteran to supply a full employment history from July 2005 to the present. 3. Schedule a VA examination with regard to the issue of the impact of the Veteran's service connected disabilities on the ability to work. Specifically, after reviewing the entire claims file, the VA examiner should answer the following question: The service-connected disabilities are PTSD, a low back condition, fractured nose with deviated nasal septum, and bilateral tinea pedis. In light of the Veteran's employment history, educational and vocational background, do any or all of the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation? In answering the foregoing, the examiner is to consider that marginal employment shall not be considered substantially gainful employment. For purposes of this determination, marginal employment generally shall be deemed to exist when the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The examiner should provide a rationale for all conclusions reached. If the examiner determines that he or she is unable to provide the requested opinion without resorting to speculation, the examiner should indicate this in the report. 4. Refer the issue of TDIU to the VA Director Compensation and Pension Service for consideration of the assignment of TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b) (2013). 5. After completing all indicated development, readjudicate the claim for TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs