Citation Nr: 1341563 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 11-10 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial, compensable disability rating for service-connected tinea cruris. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Jose, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) of Waco Texas in September 2010. In the September 2010 rating decision, the RO granted a noncompensable disability rating for tinea cruris. The Veteran filed a notice of disagreement (NOD) in September 2010. After a statement of the case (SOC) was issued in March 2011, the Veteran perfected his appeal via an October 2011 Form 9 (Appeal to the Board of Veterans' Appeals). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that additional VA medical records are associated with that record. The AOJ, however, considered those records in the November 2011 supplemental SOC. FINDING OF FACT The competent evidence of record shows that during the entire appeal period, the Veteran's service-connected tinea cruris affected 4 areas of the groin and scrotum, is unaffected by treatment, and is painful. CONCLUSION OF LAW The criteria for a 20 percent rating for tinea cruris have been met for the entire time of the claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.102, 4.118, Diagnostic Codes 7804, 7806 and 7813 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The tinea cruris appeal arises from disagreement with the initial evaluation following the grant of service connection for tinea cruris. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained VA medical records and private medical records. Additionally, the Veteran was provided a VA medical examination, most recently in August 2011. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Applicable Law 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, at the time of an initial rating, as is the situation in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as 'staged' ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. VA received the Veteran's claim in March 31, 2010. The RO granted service connection and a noncompensable disability rating, under Diagnostic Code 7813, from the date of the Veteran's application (March 31, 2010). Under C.F.R. § 4.118, tinea cruris is assigned Diagnostic Code 7813 for dermatophytosis and can be rated under Diagnostic Code 7806 for dermatitis or eczema. In addition to rating the skin disability under Diagnostic Code 7806, skin disorders can also be rated under Diagnostic Codes 7800 (for rating scars) or 7803-7805 (for rating disfigurement of the head, face, or neck). Here, however, as the Veteran's service-connected tinea cruris is not present on the head, face, or neck and the examiners did not indicate that he has scars due to the disability. Accordingly, ratings under these Diagnostic Codes are not applicable. Under Diagnostic Code 7806 for Dermatitis or eczema, a noncompensable rating is warranted if less than 5 percent of the entire body or less than 5 percent of exposed areas are affected; and no more than topical therapy was required in the past 12-month period. A 10 percent rating is warranted if the condition covers 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if the disease covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; 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 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. III. Tinea Cruris In July 2010, a VA examiner observed a 1 centimeter in diameter, very hypo pigmented area underneath the Veterans right testicle and diagnosed the Veteran with tinea cruris. The examiner noted that there was no visible rash, redness, inflammation, pus, or drainage. He opined that the tinea cruris covered approximately 1 percent of the Veteran's total body and 0 percent of his exposed body with no disfigurement. In August 2011, the Veteran was afforded another VA examination. The August 2011 VA examiner found that the Veteran's tinea cruris covered approximately 0.5 percent of his entire body and 0 percent of his head, face, neck, and hands. He also found that the Veteran was treated with triamcinolone cream twice a day. However, the treatment was unresponsive, and the examiner opined that the tinea cruris needed constant attention due to severe itching. According to VA treatment records dated on September 24, 2010, the Veteran also reported using triamcinolone twice a day. As an initial matter, the Board observes that the Veteran's tinea cruris requires the use topical therapy, but not systemic corticosteroid. Under Diagnostic Code 7806, a 10 percent rating is warranted if the condition covers 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted if the disease covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; 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. The next higher 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. None of the medical evidence of record indicates that before September 24, 2010 the Veteran's tinea cruris covered more than 5 percent of the entire body or exposed areas. Both VA examiners of record found that his tinea cruris covered less than 5 percent of the Veteran's entire body or exposed areas. Although the Veteran was prescribed ointment for his tinea cruris while in service, there is no indication that before September 24, 2010 the Veteran required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. As such, no medical evidence of record is supportive of a compensable disability rating for tinea cruris before September 24, 2010. Id. However, the August 2011 examiner noted that the Veteran treats his tinea cruris with triamcinolone cream, a topical corticosteroid, twice a day. The earliest record of the Veteran's twice-daily treatment with triamcinolone cream is documented in his VA treatment records, dated September 24, 2010. After this date, the Board finds that the Veteran's tinea cruris requires constant or near-constant systemic therapy of a topical corticosteroid in the past 12-month period. However, these symptoms do not warrant an increased rating under diagnostic code 7808 as all of the criteria under three compensable descriptions of this code require a greater percentage of affected exposed skin, or the use of systemic therapy or other immunosuppressive drugs for some period of time. Under diagnostic code 7813, tinea cruris may be rated under an alternative rating code (7800, 7801, 7802, 7804, 7805, or 7808). According, the Board will review these other codes to determine whether a compensable evaluation may be warranted. Diagnostic code 7800, 7801, and 7802 apply to burn scars of the face, head, neck or body. As the Veteran's tinea cruris does not affect exposed areas, or areas or the sizes described in these codes, they do not apply. Under DC 7804, the Veteran's affected area may be rated by analogy to DC code 7804 as scars that are unstable of painful. When examined by VA in August 2011 and it was noted that the bilateral inguinal areas, full scrotumand perianal are affected. As noted, the rash has been unresponsive to treatment and is constant. These symptoms are analogous to the 20 percent rating under 7804 which requires a showing of three or four scars that are unstable or painful. A higher rating under this code would require a showing of 5 or more unstable or painful scars, and cannot apply here since the affected area is limited to the four areas noted above. DC 7808 does not apply hear as the head, face, or neck is not affected. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as 'marked interference with employment' and 'frequent periods of hospitalization.' Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disability of tinea cruris with the respective established criteria found in the rating schedule. In this regard, the Board finds that the Veteran's symptomatology associated with the disability is fully addressed by the selected rating criteria under which such disability is rated. Specifically, the rating criterion addresses the Veteran's complaints regarding location, effects and treatment. There are no additional symptoms of the service-connected disability that is not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the disability. As such, the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to a 20 percent rating effective September 24, 2010 for tinea cruris is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs