Citation Nr: 1341653 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-42 143 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial, compensable rating for service-connected dyshydrosis (previously characterized as tinea pedis of the bilateral hands and tinea pedis of the bilateral feet), prior to June 7, 2013. 2. Entitlement to a rating in excess of 30 percent for service-connected dyshydrosis, from June 7, 2013. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO granted service connection and assigned an initial 0 percent (noncompensable) rating, each, for tinea pedis of the bilateral hands and tinea pedis of the bilateral feet; from December 5, 2007. In February 2009, the Veteran filed a notice of disagreement (NOD) with the initial ratings assigned. In October 2009, the RO issued a statement of the case (SOC), and, in October 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). Because the appeal emanated from disagreement with the initial ratings assigned following the award of service connection for tinea pedis of the bilateral hands and tinea pedis of the bilateral feet, the Board characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In April 2013, the Board remanded the claims for higher ratings to the RO, entitlement to an initial compensable rating for service-connected tinea pedis of the bilateral hands and tinea pedis of the bilateral feet to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, in a June 2013 rating decision , the RO/AMC recharacterized the disability under consideration as dyshydrosis, and granted the Veteran a 30 percent rating, effective June 7, 2013. However, as reflected in the June 2013 supplemental SOC (SSOC), the RO continued to deny a compensensable rating for the skin disability prior to that date. Given the RO's actions, the medical evidence of record, and the fact that higher ratings for the recharacterized skin disability is available before and after June 7, 2013, the Board has recharacterized the appeal as now encompassing the matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records considered by the RO in the June 2013 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Competent evidence suggests that, from the December 5, 2007 effective date of the award of service connection and prior to June 7, 2013, the Veteran's service-connected dyshydrosis affected at least 5 percent, but less than 20 percent, of the entire body; topical creams were used to treat the skin disability. 3. Since June 7, 2013, the Veteran's service-connected dyshydrosis has not involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the prior 12-month period. 4. The applicable rating criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 10 percent initial rating for dyshydrosis (previously characterized as tinea pedis of the bilateral hands and the bilateral feet), for the period from December 5, 2007 through June 6, 2013, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7816 (2013). 2. The criteria for a rating in excess of 30 percent for dyshydrosis,. from June 7, 2013, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7816 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction ( in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Veteran was sent a December 2007 pre-rating notice letter. After the award of service connection in August 2008, and the Veteran's disagreement with the initial rating assigned, the October 2009 Statement of the Case (SOC) set forth the criteria for higher ratings for tine pedis, now characterized as dyshydrosis (the timing and form of which suffices, in part, for Dingess/Hartman). Subsequently, in a May 2013 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to support a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The December 2007 pre-rating letter and the May 2013 post-rating letter also provided the Veteran with general information pertaining to the assignment of VA's disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the May 2013 letter, and opportunity for the Veteran to respond, the June 2013 supplemental SOC (SSOC) reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.. In April 2013 the Board remanded the appeal to obtain additional treatment records, to allow the Veteran to submit to additional treatment records, and to afford the Veteran a VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Pertinent medical evidence associated with the claims file consists of service, VA treatment records, and the reports of the March 2008 and June 2013 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative on his behalf. The Board finds that the Veteran's March 2008 and June 2013 VA examinations are adequate for rating purposes because they conveyed pertinent medical findings stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board also finds that no additional RO action to further develop the record in connection with either claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield , 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Here, as the RO has already awarded staged ratings for the skin disability under consideration, the Board must consider the propriety of the ratings assigned at each stage, as well as whether any further staged rating is warranted. The RO assigned the initial, noncompensable ratings (for tinea pedis) under Diagnostic Code 7813 and the 30 percent disability rating (for skin disability now characterized as dyshydrosis) under, Diagnostic Code 7806. See 38 C.F.R. § 4.118. The Board notes that prior to this appeal, as of August 30, 2002, the diagnostic criteria for evaluating skin disorders, including 38 C.F.R. § 4.118, Diagnostic Code 7806, were substantially revised. The Veteran's claim was filed in December 2007; hence, the criteria in effect as of August 30, 2002 applies. See 67 Fed. Reg. 49,590 - 49,599 (2002). Although, the criteria for evaluating were again revised . effective October 23, 2008, those criteria are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Diagnostic Code 7813 provides that tinea pedis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Notwithstanding the recharacterization of the disability and change in diagnostic code, the Board notes that since the 2007 effective date of the award of service connection, the skin disability has actuall7 been evaluated under the criteria of Diagnostic Code 7806; which provides for ratings based on the percentage of the body involved, as well as the percentage of the exposed areas affected, as well as whether and how frequent systemic therapy (such as corticosteroids or other immunosuppressive drugs) is required during a 12-month period. Under Diagnostic Code 7806, a noncompensable rating is assigned if less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12- month period. A 10 percent rating is warranted if the eczema or dermatitis results in at least 5 percent, but less than 20 percent, of the entire body being affected, or at least 5 percent, but less than 20 percent, of exposed areas being affected; or, if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is assigned in cases where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is 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. A 60 percent rating is warranted in cases of 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. An October 2007 VA treatment note indicates that the Veteran's right palm had a chronic appearing rash. The report of an October 2007 dermatology consult includes a notation that the Veteran had right palmar hyperkeratosis scaling with similar extensive involvement of both feet. It was noted that he could not use systemic anti fungals due to other medications and had to use topical cream instead. On VA examination in March 2008; the VA examiner found that there was no major involvement and thus, no percentage of the surface area could be given. He further stated that the right hand had only a little thickening of the mid-palmar skin and his feet were essentially clear except for minimal toe web scaling and some evidence of thickened toenails of the second and great toenails. The Veteran's VA treatment records indicate that in August 2011, he had increased pigmentation of his right foot and he had numbness of his feet. A June 2013 VA examiner explained that the Veteran had a condition called "jungle fungus" but that the more proper diagnosis was dyshydrosis or dyshydrotic eczema. The VA examiner stated that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck; and there was no benign or malignant skin neoplasms, and no systemic manifestation. However, it was noted that the Veteran had been on topical medications for 6 weeks or more but not constant; there were no other treatments or procedures other than topical medications in the past 12 months. There were no debilitating episodes in the past 12 months due to urticaria, primary cutanous vasculities, erytehma multimore, or toxic epidermal necrolysis. The examiner opined that there were also no non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. The total body area of the Veteran's eczema was estimated to be more than 5 percent but less than 20 percent. The examiner noted that dyshydrosis of the hands covered both hands total and 5 percent of the total body surface area; his dyshydrosis of the feet extended to the medial and lateral surface of the feet for a total of 5 percent of the total body surface area. The June 2013 VA examiner also offered that the Veteran had flares twice a year that lasted a couple of months, during which he used creams more frequently and added antifungal cream and antibacterial soap.; he further noted that the Veteran uses clotrimazole and chlorhexidine during flares. The examiner noted that, every day, the Veteran used ammonium lactate. He did not use steroids or immunosuppressive drugs; he used prednisone once or twice a year for flares of gout. The VA examiner opined that this condition has been ongoing unabated since the Veteran returned from the Republic of Vietnam and that, since 2007, the scaling and vesicles occurred two to three times a year as opposed to once a year prior to 2007. He further stated that although the Veteran's exacerbations occurred more frequently, there had actually been no increase in degree of disability with each exacerbation. He could still use his hands and had no limitations of his feet for his skin condition; any limitations were the result of his gout. Considering the evidence in light of above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the collective evidence indicates that the Veteran's dyshydrosis warrants an initial rating of 10 percent for the period prior to June 7, 2013. As noted, a 10 percent disability rating is warranted when dermatitis or eczema involves 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 required for a total duration of less than six weeks during the past 12-month period. While the March 2008 VA examiner stated that percentages of the surface area could not be given, the June 2013 VA examiner indicated that the dyshydrosis had not increased in any degree since 2007, and estimated that the Veteran's total exposed area was least 5 percent, but less than 20 percent. Thus, considering this evidence in conjunction with the Veteran's statements, the Board finds that an initial 10 percent disability rating is warranted. However, no higher initial rating is warranted. While the June 2013 VA examiner indicated that the Veteran used topical medications for a total duration of six weeks or more, but not constantly, during the past 12-month period, the Board finds that there is no evidence that the creams used (ammonium lactate cream, clotrimazole cream, or chlorhexidint) constitute systemic therapy. Moreover, the 2013 VA examiner specifically stated that the Veteran did not use steroids or immunosuppressive drugs for his skin; steroid use was noted to be for the Veteran's gout. Thus, while the Veteran used topical therapy for a total duration of six weeks or more, but not constantly, he was not noted to use systemic therapy such as corticosteroids or other immunosuppressive drugs. The Board notes that, in the June 2013 RO rating decision, the RO granted the Veteran a higher rating of 30 percent based upon this topical therapy. While the Board will not disturb the award of the 30 percent rating, the Board is not bound by the RO's determinations in evaluating the disability prior to June 7, 2013. "[T]he Board, as the final trier of fact, is not constrained by favorable determinations below." McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009). The Board, as fact finder, has determined, for the reasons set forth above, that the symptomatology presented prior to June 7, 2013, does not warrant an rating greater than the now assigned 10 percent disability rating. Thus, for the prior to June 7, 2013, a higher initial rating of 10 percent, but none higher, is warranted. The Board also finds that since June 7, 2013, the Veteran's dyshydrosis does not warrant a higher rating than the 30 percent disability rating assigned from that date. As discussed above, the RO granted the Veteran a 30 percent disability rating based upon the duration of the Veteran's treatment with skin creams in the prior 12-month period. However, as noted, this medication was not in the form of systemic therapy such as corticosteroids or other immunosuppressive drugs. Clearly, then, there is no evidence of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period, and the therapy that the Veteran did use was noted to be for a total duration of six weeks or more, but not constantly, during the past 12-month period. Furthermore, the June 2013 VA examiner indicated that the Veteran's dyshydrosis involved the exposed area that was least 5 percent, but less than 20 percent and there is no evidence that the Veteran's dyshydrosis had involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected. Thus, the Board finds that since June 7, 2013, the Veteran's dyshydrosis does not warrant a rating higher than 30 percent. The Board has also considered whether any higher disability rating is warranted under an alternative diagnostic code for any period since the 2007 effective date of the award of service connection, but finds that none is assignable. As noted, Diagnostic Code 7813 provides for an alternative method of evaluation under Diagnostic Codes 7800 for disfigurement of the head face or neck or Diagnostic Codes 7801 to 7805 for scars. However, the there is no evidence of any scarring or disfigurement, underlying soft tissue damage, limited motion, instability, pain, or limitation of function (the June 2013 VA examiner specifically that the Veteran did not have any limitation of function). Hence, those diagnostic codes are not for application under the circumstances of this case. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability under consideration been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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 those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. As discussed above, the applicable rating criteria contemplates the type of symptoms and level of impairment associated with the Veteran's disability, and provide for higher ratings based on other, and/or more significant impairment. Significantly, there is no evidence or argument that the applicable criteria are not adequate to evaluate the Veteran's disability. As such, the fundamental requirement for invoking the procedures for extra-schedular procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although, under these circumstances, the Board need not address whether the disability presents such unusual factors as marked interference with employment or repeated hospitalization, it is noteworthy that the June 2013 VA examiner specifically opined that the Veteran's skin disability did not involve functional limitations (or, in other words, did not impact his ability to work). Finally, although the Veteran has submitted evidence of medical disability, and is presumably seeking the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due his service-connected dyshydrosis. Therefore, the question of the Veteran's entitlement to a total disability rating based on individual unemployability due to the skin disability under consideration service-connected hypertension has not been raised as a component of the claims for higher ratings, and need not be addressed. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For all the foregoing reasons, the Board finds that, while an initial, 10 percent disability rating for the Veteran's skin disability prior to June 7, 2013 is warranted, a rating for the disability in excess of 30 percent, from June 7, 2013, must be denied. In reaching the decision to award an initial, 10 percent rating, the Board has favorably applied the benefit-of-the doubt doctrine, but finds that the preponderance of the evidence is against assignment of a higher rating since June 7, 2013, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial 10 percent rating for dyshydrosis, from December 5, 2007 through June 7, 2013, is granted, subject to the legal authority governing the payment of compensation benefits. A rating in excess of 30 percent for dyshydrosis, prior to June 7, 2013, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs