Citation Nr: 1338183 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 03-16 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for the Veteran's dyshidrosis of the hands, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability evaluation for the Veteran's tinea pedis with onychomycosis, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from November 1964 to November 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Waco, Texas, Regional Office (RO) which, in pertinent part, denied increased disability evaluations for both the Veteran's dyshidrosis of the hands and his tinea pedis with onychomycosis. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In August 2010, the Board remanded the Veteran's appeal to the RO for additional action. In February 2012 and May 2013, the Board remanded the Veteran's appeal for additional action. The action requested by the Board's May 2013 Remand been completed. Therefore, there is no prejudice for the Board to proceeding with adjudication of the Veteran's appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's dyshidrosis of the hands has been shown on multiple examinations to be essentially inactive; to involve no body surface areas; to require the use of topical medications; and to be manifested by no residuals scarring during all relevant time periods. 2. The Veteran's tinea pedis with onychomycosis has been shown on multiple examinations to be manifested by discolored and deformed toenails and no residual scarring; to involve less than five percent of the total body surface area and no exposed areas; to necessitate the use of no more than prescribed topical medications during all relevant time periods. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the Veteran's dyshidrosis of the hands have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.3, 4.118, Diagnostic Code 7806, 7820 (2013). 2. The criteria for an evaluation in excess of 10 percent for the Veteran's tinea pedis with onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.326(a), 4.3, 4.118, Diagnostic Code 7806, 7813 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. VA issued an August 2005 VCAA notice to the Veteran which informed him of the evidence generally needed to support a claim for an increased evaluation for his skin disabilities and the assignment of an effective date for such awards; what actions he needed to undertake; and how VA would assist him in developing his claims. The August 2005 VCAA notice was issued to the Veteran prior to the May 2006 rating decision from which the instant appeal arises. The issue was readjudicated in the March 2007 statement of the case (SOC) and the multiple supplemental statements of the case (SSOC). Therefore, there was no defect with respect to timing of the VCAA notice. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge. The hearing transcript is of record. VA clinical documentation has been obtained. The Veteran has not alleged receiving any private skin treatment during the course of his appeal. The Veteran was afforded multiple VA skin examinations. The examination reports are of record. In its May 2013 Remand instructions, the Board directed that the Veteran be afforded an examination during the summer months when he stated that his service-connected disabilities were most active. In accordance with the Board's Remand instructions, the Veteran was afforded an August 2013 VA examination. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2013 VA examination report reflects that all relevant records were reviewed and opinions requested were advanced. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Evaluations The Veteran asserts that the record supports assignment of increased evaluations for his skin and toenail disorders as the disabilities are productive of significantly disabling and repugnant symptoms which impaired his vocational and daily activities. Disability evaluations are determined by comparing the current service-connected symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Dyshidrosis and other infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases) are to be evaluated as either disfigurement of the head, face, or neck under 38 C.F.R. § 4.118, Diagnostic Code7800; scars under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, or 7803; or dermatitis under 38 C.F.R. § 4.118, Diagnostic Code7806 depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Tinea pedis is to be evaluated as either scars under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, or 7803; or dermatitis under 38 C.F.R. § 4.118, Diagnostic Code7806 depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. The Veteran's service-connected skin disabilities involve neither the head or neck nor scarring. They are manifested by symptoms analogous to dermatitis. Therefore, the Board finds that the disabilities should be evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7806. 8 C.F.R. § 4.118, Diagnostic Code 7813, 7820. A 10 percent evaluation for dermatitis requires involvement of at least 5 percent, but less than 20 percent, of the entire body; at least 5 percent, but less than 20 percent, of exposed areas affected; or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation requires involvement of 20 to 40 percent of the entire body; 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Dermatitis may also be evaluated as disfigurement of the head, the face, or the neck under Diagnostic Code 7800 or as scars under 38 C.F.R. § 4, Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. VA clinical documentation dated in March 2005 shows that he was prescribed a topical ointment for nummular eczema of the hands and onychomycosis. In his June 2005 claim for increased evaluations and several contemporaneous letters from his daughters, the Veteran and his children related that the skin on the Veteran's hands and feet cracked and bled and a bad odor emanated from his feet. He treated his skin with a cream. At a December 2005 VA examination, the Veteran reported that his skin symptoms worsened during the summer and improved during cooler weather. He stated that he used a topical ointment twice a day for severe cracking and bleeding of his hands. On examination, the Veteran exhibited no active skin disabilities, residual scarring, or associated physical impairment. The examiner estimated that when the Veteran's service-connected skin disabilities are active, they involve approximately less than one percent of the body surface area and one percent of exposed areas. In a December 2005 written statement, the Veteran stated that he experienced blistering and cracking in the hands and the feet and bad foot odor which he treated with topical ointments and antibiotic creams. He indicated that: people would not shake his hands due to his skin disabilities; he had to wash his feet often; and he changed his socks several times a day. At an April 2006 VA skin examination, the Veteran reported that he experienced recurrent skin cracking and bleeding during the summer. The Veteran used a topical cream twice a day and no steroidal preparations. On examination, the Veteran exhibited some erythema and minimal peeling of the skin of the toes and a greenish discoloration to the toenails with deformity. The examiner estimated that less than one percent of total body area and no exposed areas were affected. The Veteran was diagnosed with tinea pedis and onychomycosis of all toenails. Clinical documentation dated in January 2007 reflects that the Veteran reported using topical medications which did not help his skin symptoms. On examination, the Veteran exhibited a peeling and macerated appearing rash on the palmar surface of both hands, between his toes, and on the plantar aspect of his left foot and thick and dystrophic toenails . Diagnoses of tinea and onychomycosis were advanced. VA podiatric clinical documentation dated February 2007 states that the Veteran was prescribed oral anti-fungal agents for his mycotic nails. At a January 2008 VA skin examination, the Veteran reported that his skin symptoms waxed and waned. He used a topical ointment twice a week. The Veteran did not use oral corticosteroids or immunosuppressives. On examination, the Veteran exhibited thickened and deformed toenails and no active skin disorders or residual scarring. The examiner determined that the Veteran's service-connected dyshidrosis and tinea pedis involved no body surfaces and his onychomycosis affected less than 0.1 percent of the entire body surface and no exposed areas. At the April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran testified that: his skin disabilities involved his hands; he had blisters on his hands; and his symptoms were more active in the summer time. While he had previously taken steroids for his disabilities, the Veteran denied receiving any steroidal medications within the past year. At a November 2010 VA skin examination, the Veteran presented a history of skin cracking and peeling; blistering of his fingers, toes, and ears during the summer; and taking a 5 mg tablet of prednisone once per month for the previous six months which had been given to him by a friend and not prescribed by a doctor. The examiner noted that the Veteran used a topical cream once per week. On examination, the Veteran exhibited onychomycosis of the toenails which involved less than one percent of the total body surface; no evidence of dyshidrosis of the hands, feet or ears or tinea pedis; and no residuals scarring or disfigurement. The examiner opined that the Veteran's dyshidrosis, tinea pedis, and onychomycosis did not affect his vocational pursuits and did not require systemic therapy. Written statements from the Veteran's family members and friends dated in October 2011 convey that the Veteran's hands and feet cracked and bled; his feet were productive of a repugnant odor; and he had to change his underwear and socks several times per day. At the August 2013 VA skin examination, the Veteran complained of flaring of his hand skin symptoms approximately every three to four weeks with some fissuring and desquamation; itching of the feet itch; and some fissuring between his toes, near the heels. He was reported to use two topical medications including a corticosteroid on a daily basis. The Veteran stated that while he retired for reasons other than his skin disabilities, he would not be able to do his prior duties as a postal worker on account of his inability to be exposed to petroleum products and other chemicals. On examination, the Veteran exhibited onychomycosis of the toenails with the involvement of less than five percent of the total body surface area and no exposed areas; no active skin disabilities of the hands and feet; and no scarring or disfigurement and no systemic manifestations. The Veteran's service-connected dyshidrosis of the hands, tinea pedis, and onychomycosis have been shown on repeated VA examinations, including one conducted during a summer month, to involve less than five percent of his total body surface area and no exposed areas; not to require the use of more than topical therapy during all relevant time periods; and to be manifested by no residual scarring. While the Veteran has reported that his skin disabilities were manifested by active and repugnant symptoms, the clinical and examination record do not contain any objective findings that support his contentions. Indeed, the Veteran's disabilities, with the exception of onychomycosis, have been repeatedly shown to be controlled by his topical medication and/or otherwise essential asymptomatic. The Board finds that the current 10 percent evaluations assigned for the Veteran's dyshidrosis of the hands and tinea pedis with onychomycosis adequately reflect his current service-connected symptomatology. In the absence of any objective evidence that the Veteran's service-connected disabilities either involve 20 to 40 percent of the entire body surface and/or of the exposed areas or require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, the Board concludes that evaluations in excess of 10 percent for both dyshidrosis of the hands and tinea pedis with onychomycosis are not warranted during the relevant period of time. 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes7806, 7813, 7820; Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Extraschedular Consideration The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where evaluations based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular evaluation under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant'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 claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813, 7820 contemplate a number of potential symptoms of a skin disease, including scarring, coverage of the skin condition, and type of medication required for treatment. Higher schedular evaluations are also available for more severe skin manifestations. As such, it would appear that the schedular rating criteria reasonably describe the symptomatology of the Veteran's skin diseases. To the extent that it is argued that the criteria are not considered to have reasonably described the Veteran's disability level and symptomatology, the Board has also considered whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" of an extraschedular rating. Here, however, the Veteran's skin disabilities have not caused any governing norms of an extraschedular rating. The skin disabilities have not required the Veteran to be hospitalized at any time. At the August 2013 VA skin examination, the Veteran asserted that he would not be able to do his prior duties as a postal worker on account of his limiting his exposure to petroleum products and other chemicals. However, the examiner noted that the Veteran had retired for other reasons and there was no suggestion that the Veteran's skin disabilities rendered him unemployable or even that it would present a significant impediment to working. As such, the Board finds that such impairment rise to the level of marked interference with employment, particularly in light of the fact that the Veteran's extensive medical records from throughout the course of his appeal do not suggest that the Veteran's skin conditions interfere with his employability. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. However, he has not alleged that he is unemployable on account of his service-connected skin disabilities. ORDER An increased evaluation for the Veteran's dyshidrosis of the hands is denied. An increased evaluation for the Veteran's tinea pedis with onychomycosis is denied. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs