Citation Nr: 1336607	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  09-39 981	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Evaluation of tinea cruris, neurodermatitis, and lichen simplex chronicus, rated as 30 percent disabling.

2.  Whether the Veteran submitted a timely substantive appeal as to his applications to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus. 

3. Entitlement to a separate evaluation for scars, residuals of neurodermatitis.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel
INTRODUCTION

The Veteran served on active duty from December 1969 to December 1995.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the appeal.

The Veteran provided testimony at an August 2010 hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In February 2011, the Board found that the Veteran's testimony during the August 2010 hearing constituted a notice of disagreement (NOD) as to the RO's determination that the Veteran's substantive appeal was untimely as to his applications to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus and remanded this claim for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999).

The Board also directed the RO to schedule the Veteran for a VA examination to evaluate the severity of his service-connected tinea cruris and to clarify whether the grant of service connection should include neurodermatitis.  Following a June 2011 VA examination, the RO recharacterized the issue and granted an increased 30 percent rating for the service-connected tinea cruris, neurodermatitis, and lichen simplex chronicus effective on November 24, 2008.  As higher ratings for this disability were available both before and after November 2008, and the Veteran was presumed to seek the maximum available benefit for the disability, the claim remained on appeal. See AB v. Brown, 6 Vet.App. 35, 38 (1993).

Finally, the Board notes that the Veteran initially raised a claim to reopen the issue of service connection for bilateral hearing loss and tinnitus.  However, the Veteran subsequently indicated that he did not want to pursue the claim to reopen. See October 2012 Report of General Information.


FINDINGS OF FACT

1.  The service-connected tinea cruris, neurodermatitis, and lichen simplex chronicus has been manifested by hyperpigmented areas, burning, and itchiness, affecting at least 5 but no more than 20 percent of the exposed areas; constant or near constant systematic therapy such as corticosteroids or other immunosuppressive drugs were not required.

2.  The Veteran's service-connected skin disorder is characterized by two painful scars on the left and right thighs.

3.  The Veteran was notified in June 2009 of a May 2009 rating decision which reopened the claim for service connection for bilateral hearing loss and denied the claim on the merits, and denied the application to reopen the claim for service connection for tinnitus.

4.  The Veteran filed a NOD in June 2009, and was issued a SOC in September 2009.

5.  A substantive appeal was not received by the RO within one year of notification of the May 2009 rating decision.


CONCLUSIONS OF LAW

1.  The criteria for a rating higher than 30 percent for tinea cruris, neurodermatitis, and lichen simplex chronicus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7813-7806 (2013).

2.  The criteria for a separate 10 percent rating fot two painful scars have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2013).

3.  The criteria for a timely filed substantive appeal regarding entitlement to applications to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus, have not been met. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R.§§ 20.200, 20.202 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty 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) (2012).

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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1).

With regard to the Veteran's appeal of the timeliness of a substantive appeal, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

The December 2008 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim of service connection for a skin disorder.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the December 2008 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The appeal for evaluation a higher evaluation for a skin disorder arises from a notice of disagreement with the initial assignment of a disability rating following a grant of service connection.  As the May rating decision on appeal granted the Veteran's claim of entitlement to service connection for a skin disorder, the claim is now substantiated.  As such, his filing of a notice of disagreement as to this determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Thus, no further notice is required and the Board finds no evidence of prejudicial error in proceeding with final appellate consideration of the Veteran's claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA obtained the Veteran's service treatment records, VA treatment records, and all of the identified private treatment records.  In addition, the Veteran underwent VA examinations in March 2009, May 2010, June 2011, September 2012, and December 2012.  The Board has carefully reviewed the VA examinations of record and finds that the examinations in conjunction with the other medical and lay evidence are adequate for rating purposes.  Thus, with respect to the Veteran's claim for a higher initial rating for the service-connected skin disorder, there is no additional evidence which needs to be obtained.

The Veteran was also afforded an opportunity to present testimony at a hearing before the Board.  During the hearing, the undersigned Veterans Law Judge clarified the issue on appeal, explained the concept of an increased rating, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim.  The VLJ also left the record open for a 30 day period following the hearing to allow for the submission of such additional evidence.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103.

For these reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements.  The claim of service connection is ready to be considered on the merits.

II. Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained 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.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, there was no significant change in the disability during the appeal and a uniform evaluation is warranted.

The Veteran's service-connected tinea cruris, neurodermatitis, and lichen simplex chronicus is rated under Diagnostic Codes 7813-7806.  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.

Diagnostic Code 7813 pertains to dermatophytosis, which is in turn rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, scars, under Diagnostic Code 7801-7805, or dermatitis, under Diagnostic Code 7806, depending upon the predominant disability.

Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: scar is 5 or more inches (13 or more cm.) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Diagnostic Code 7800 provides that a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800.

Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802.

Diagnostic Code 7804 pertains to unstable or painful scars. Five or more scars that are unstable or painful are 30 percent disabling. This is the highest rating available under this Diagnostic Code. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

Under Diagnostic Code 7806 for dermatitis or eczema, a 30 percent rating is warranted for a skin disorder that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted for a skin disorder that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 

Facts

The Veteran contends that a 60 percent disability rating is warranted based on a report that 95 percent of his groin area is affected and because corticosteroids or other immunosuppressive drugs were administered.  See September 2011 statement, October 2013 statement.

A private dermatology report in September 2008 shows the Veteran had intertrigo on his groin and thighs treated with vertigo foam.  

On VA examination in March 2009, the Veteran reported having intermittent symptoms of itching and scratching.  He reported part-time employment for the last 10 years with 3 weeks of time lost during the last year due to his skin disability.  The examiner noted that the Veteran used topical antifungal creams and an antihistamine.  Physical examination shows that none of the exposed areas (head, face, neck, and hands) were affected and less than 5 percent of the total body was affected.  The examiner also noted a hyperpigmented area diffusely in the groin.  There were no excoriations, edema, or fissures.  The diagnosis was tinea cruris.

On VA examination in May 2010, the Veteran reported progression of the skin disorder and treatment with a daily dose of Prednisone for 1 to 6 weeks and two weeks on and off of Triamcinolone, a topical corticosteroid.  Physical examination shows that greater than 5 percent but less than 20 percent of the total body area is affected.  There were excoriations visible on the right upper medial thigh and hyperpigmentation was noted with right greater than left with thinning of the skin covering the inner upper thighs, groin, inferior scrotal regions, and lower buttocks region.

On VA examination in June 2011, the Veteran reported recurrent persistent rash in the groin area.  Following a review of the claims file, the VA examiner noted systemic therapy since November 2008.  In 2009, the Veteran was prescribed Terbinafine 350 mg daily for 30 days and Prednisone 10 mg daily for 30 days.  In June 2009, the Veteran had a 20 mg injection of Kenalog Intramuscular (IM) plus 20 mg of Decadron IM.  In November 2009, he had an 80 mg Kenalog IM injection.  In August 2010, he had an 80 mg Kenalog IM injection.  In 2011, he was prescribed 10 mg of Prednisone daily for 30 days.  A February 2011 dermatology plan noted Kenalog injection every 3 to 4 months and 10 mg of Prednisone daily for 60 days.  The Veteran also takes Hydroxyzine (antihistamine) orally nightly for pruritus, which is also systemic therapy.  The examiner noted that IM Kenalog is not a standard of care for neurodermatitis, but is a systemic therapy.

Physical examination in the June 2011 VA examination revealed greater than 5 percent but less than 20 percent of that the total body area was affected and a well circumscribed hyperpigmented patch in the bilateral groin area with six 1 mm slightly erythremic macules superimposed on the hyperpigmented patch, mild lichenification of the crural fold, and a 6 to 7 percent total body surface area of hyperpigmentation.  There was no scaling, excoriations, penile discharge, lesions on the scrotum, penis, or mons pubic mons  The diagnosis was lichen simplex, chronicus, also known as neurodermatitis secondary or sequelae of frequent scratching was indicated.  The examiner indicated that tinea cruris causes itching, and scratching may cause excoriations, local infections, and perpetuates the scratch-itch cycle.  The examiner also stated that neurodermatitis, or lichen simplex chronicus, is a skin disorder characterized by a self-perpetuating scratch-itch cycle. 

Physical examination in the June 2011 VA examination also revealed superficial painful scars (hyperpigmentation) measuring 5 cm wide by 14 cm in length encompassing an area of at least 6 sq in (29 sq cm), but less than 12 sq in (77 sq cm) in the bilateral crural folds.  The etiology of the hyperpigmentation was from neurodermatitis and a tan to brown hyperpigmented patch in the groin area.  There was evidence of skin breakdown over the scar with a frequency of almost constant due to moderate to severe itching causing scratching and eventual irritation, excoriations, and pain.  There was no evidence of inflammation, edema, or keloid formation.

On VA examination in September 2012, the Veteran reported constant pruritus and burning sensation in the crural folds with occasional excoriations.  The examiner noted that the skin disability impacts his ability to work due to constant itching and scratching.  The examiner reviewed the Veteran's treatment history and noted a 2012 prescription for 25 mg of Hydroxyzine orally nightly.  One dose of Kenalog IM injection was noted within the past 12 months with duration of less than 6 weeks.  The examiner noted the constant or near constant use of Hydroxyzine (antihistamine) in the groin and medial upper thighs.  The Veteran also reported use of Hydrocortisone cream (topical corticosteroids) for 6 weeks or more, but not constant.  Physical examination showed greater than 5 percent but less than 20 percent of the total body area affected by infections of the skin.  No exposed body areas were affected.  The diagnosis was tinea cruris with sequelae of neurodermatitis.

The September 2012 VA examiner noted the private dermatology note dated February 2011 that noted a private treatment plan to administer Kenalog injections every 3 to 4 months, as need.  The examiner stated that this is not considered a continuous, routinely scheduled systemic treatment.  The examiner noted that between February 2011 and September 2012, that the Veteran received only one dose of Kenalog injection with a total duration of less than 6 weeks.  The examiner further noted that Kenalog injection, although a steroid, is not a standard treatment for tinea cruris.  Following a literature review and consultation with a VA pharmacist, the examiner noted that the half-life of Kenalog injections is 8 to 9 hours, and it is out of the system after approximately one and half days.

The Veteran was afforded a VA examination in December 2012 by a VA dermatologist.  The VA dermatologist noted no scars were found on the body including the trunk or extremities.  The dermatologist noted the Veteran's treatment with systemic corticosteroids or other immunosuppressive medications within the past 12 months was constant or near-constant.  She noted the use of constant or near-constant antihistamine Hydroxyzine, and constant or near-constant Elidel (topical medication).  Physical examination showed no exposed areas were affected and greater than 5 percent but less than 20 percent of the total body area was affected by infections of the skin.  Dermatitis affected greater than 5 percent but less than 20 percent of exposed area.  The VA dermatologist stated that Kenalog shots are systemic, but that this treatment is not recommended because chronic treatment with corticosteroids has many side effects.  She stated that 9 percent of the Veteran's entire body was affected.

In an August 2013 SSOC, the RO stated that no separate evaluation is warranted for scars as there were no scars visible on examination in December 2012.

Analysis

The Board finds that the Veteran's tinea cruris, neurodermatitis, and lichen simplex chronicus does not more nearly approximate the criteria for the next higher rating of 60 percent under Diagnostic Code 7813-7806.  A 60 percent rating is warranted for a skin disorder that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 

The Board notes that none of the medical evidence establishes that the Veteran's skin disability affects at least a 40 percent area of the total area or total exposed area of his body.  The evidence shows that no more than 20 percent of the entire body or no more than 20 percent of the exposed areas were affected.  On VA examination in March 2009, no exposed areas (head, face, neck, and hands) were affected and less than 5 percent of the total body area was affected.  On VA examination in May 2010, no exposed areas were affected and greater than 5 percent but less than 20 percent of the total body area was affected.  On VA examination in June 2011, no exposed areas were affected and greater than 5 percent but less than 20 percent of the total body area was affected.  The examiner noted 6 to 7 percent total body surface area was affected by hyperpigmentation.  On VA examination in September 2012, no exposed areas were affected and greater than 5 percent but less than 20 percent of the total body area was affected.  On VA examination in December 2012, no exposed areas were affected and greater than 5 percent but less than 20 percent of the total body area was affected by infections of the skin.  Dermatitis affected greater than 5 percent but less than 20 percent of exposed area.  Finally, on examination in December 2012, the VA dermatologist stated that 9 percent of the Veteran's total body was affected.  

Findings from the VA examinations are consistent with private treatment records which show that the Veteran's skin disability variously affected his groin, thighs, and torso.  Although the Veteran contends that 95 percent of his groin is affected and should warrant a higher rating, the diagnostic code considers the percent of the entire body affected or the percent of exposed areas affected.  Exposed areas are characterized as areas most likely exposed to visual consideration such as the face, neck, and hands.  The groin is not considered an exposed area.

The evidence of record does not show that the Veteran's skin disorder has ever affected more than 40 percent of the entire body ore more than 40 percent of exposed areas affected.  Therefore, the Veteran does not warrant a higher rating based on total body area affected.

As for the Veteran's therapy, the evidence does not show a requirement of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period.  Despite the Veteran's contentions of continuous systemic drug treatment, VA examination reports continue to reflect that the systemic therapy was not continuous or near-continuous.  Although the evidence shows that Prednisone and Kenalog injections are systemic therapy, the Veteran's use of such treatment was not frequent enough to approximate constant or near-constant administration.  Indeed, the February 2011 private treatment records note a treatment plan for Kenalog injections every 3 to 4 months as needed which indicates less than constant or near-constant therapy.  Furthermore, the September 2012 VA examiner noted that the Kenalog IM injections were not considered continuous treatment because the half-life of the injection was 8 to 9 hours so the medication remains in the body for less than two days.  

Finally, the Board notes that the December 2012 VA dermatologist indicated the Veteran has been treated with constant or near-constant corticosteroids.  In the rationale for this opinion, the December 2012 VA dermatologist further stated that such treatment is not recommended due to the many possible side-effects, to include causing chronic dermatitis.  Then, the VA examiner stated that he does not recommend Kenalog shots every 3 months and that the Veteran should stop taking the Hydroxyzine.  This opinion is further indication that the use of constant or near-constant systematic therapy is not required.  While the Veteran has required various topical creams along with oral anti-fungal and antihistamine medications, this type of treatment is not systemic (oral) corticosteroid.

Although the competent medical evidence of record does reflect the Veteran's use of systemic therapy throughout the appeal period, it does not show that he has required constant or near constant therapy.  Therefore, the Veteran does not warrant a higher rating based on constant or near-constant systemic therapy.

Scars

With regard to the Veteran's claim for a separate rating for scars, the Board notes a separate evaluation for scars was denied in an August 2013 SSOC.  

It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  In this case, a separate rating for painful scars is applicable under Diagnostic Code 7804.  In the June 2011 VA examination report, the examiner noted the scars on the left and right thighs cause disabling effects because it is painful to walk when excoriations are present.  Therefore, a separate evaluation for painful scars is warranted.  A separate rating under Diagnostic Code 7805 for disabling effects would be considered pyramiding.

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.

Based on the record, a separate 10 percent evaluation for scars is warranted.  
The evidence shows that the treatment received has not been continuous or near continuous, and that less than 40 percent of his entire body or exposed areas are affected by the service-connected skin disability.  The preponderance of the evidence is against a rating greater than 30 percent, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b).

Extra schedular Considerations

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 skin disability.  The Veteran's skin disability covers less than 20 percent of his total body area and associated scarring that causes some limitation of function, and his treatment regimen is fully contemplated by the schedular criteria.  There is no suggestion that the disabilities in question create marked interference with employment or frequent periods of hospitalization.  Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1).

Total Disability Rating Based on Unemployability (TDIU)

The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

In this case the Veteran acknowledges being employed during the pendency of this appeal.  Moreover, as noted by the June 2011 examiner, the Veteran missed a total of three weeks over the preceding year due to his disabilities; such does not suggest unemployability or marked interference with employability.  As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised under Roberson and Rice.

III. Timeliness of Appeal

In order for the Board to have jurisdiction to review a RO denial, there must be a timely substantive appeal.  A timely substantive appeal initially requires that a written NOD be filed within one year after the date of notice of the RO denial. Next, the RO must issue a SOC on the matter being appealed.  Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board.  A timely substantive appeal is one filed in writing, within 60 days of the date of notice of the SOC, or within the remainder of the one-year period of the date of notice of the RO decision being appealed, whichever is later.  The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2013).

The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case over which it does not have jurisdiction. 38 U.S.C.A. § 7105(d) (3) (West 2002); 38 C.F.R. § 20.101(d) (2013).  The agency of original jurisdiction (AOJ) may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32 (2013)), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.101(d) (2013).  The Board notes that the issue of timeliness of appeal was addressed by the AOJ in a July 2010 letter; the issue was never waived.

In this case, at his August 2010 Board hearing, the Veteran asserted that the VA Form 9 was untimely submitted because his former representative indicated only that he was appealing the issue of the rating for his skin disorder.  The Veteran argues that his former representative omitted the issue of the application to reopen the claim for entitlement to service connection for bilateral hearing loss and tinnitus from the substantive appeal.

In a May 2009 rating decision, the RO reopened the claim for service connection for bilateral hearing loss and denied the claim on the merits, and denied the application to reopen the claim for service connection for tinnitus; notice was sent to the Veteran in a letter dated June 1, 2009.  The Veteran was furnished a SOC on September 24, 2009.  He was notified that his appeal should address: the benefit he wanted; the facts in the SOC with which he disagreed; and the errors that he believed the RO made in applying the law.  He was also informed that he must file his appeal within 60 days from the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he appealed.

In his October 2009, substantive appeal (VA Form 9), the Veteran indicated only that he was appealing the issue of the rating for his skin disorder.  The next communications received from the Veteran in this regard were in July 2010, in which he indicated that he revoked AMVETS' (veterans service organization) authority to work as his representative and in which he indicated that he desired to appeal the issue of the application to reopen the claim for entitlement to service connection for bilateral hearing loss and tinnitus.  These communications were more than one year after he was notified of the RO's May 2009 decision, and more than 60 days after the SOC was mailed in September 2009. 

A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. 38 C.F.R. § 20.202.  The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed.  To the extent feasible, the arguments should be related to specific items in the SOC and any prior supplemental SOCs. Id.  The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in determination, or determinations, being appealed. Id.

The Veteran had until June 2010 (one year from the date of the RO's original notification of the denial of claims) to file a substantive appeal with the issue addressed in the July 2009 SOC; however, the Board finds that the Veteran did not submit any documents during the relevant time period that would constitute a substantive appeal.

Although the filing of a timely appeal is not per se jurisdiction, in this case, timeliness is not waived, and good cause is not shown.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (VA can waive objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected).  The argument that the representative should have filed a substantive appeal does not detract for the fact that the Veteran could have filed an appeal on his own. 

In view of the foregoing, the Board must find that no documentation was received from the Veteran that could constitute a valid substantive appeal pursuant to 38 C.F.R. § 20.202.  Accordingly, the Board concludes that a timely substantive appeal of the May 2009 RO decision was not received.  Therefore, the Board must find that the Veteran did not perfect a timely appeal, and this appeal must be dismissed.
ORDER

A rating higher than 30 percent for tinea cruris, neurodermatitis, and lichen simplex chronicus is denied.

A separate 10 percent rating for two painful scars is granted, subject to the laws and regulations governing the payment of monetary benefits.

As a substantive appeal in regards to bilateral hearing loss and tinnitus was not timely filed, the appeal is dismissed.




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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs