Citation Nr: 1342320 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-40 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. For the period prior to May 3, 2013, entitlement to a compensable initial disability rating for tinea versicolor. 2. For the period beginning on May 3, 2013, entitlement to an initial disability rating in excess of 30 percent for tinea versicolor. 3. Entitlement to a compensable initial disability rating for ingrown toenails. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to December 2009. He is the recipient of, among several decorations, the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Winston-Salem, North Carolina that granted service connection for tinea versicolor and ingrown toenails and assigned noncompensable ratings, effective January 1, 2010, the day after the Veteran's separation from service. In February 2013, the Board remanded the Veteran's claim for further development. Such development has been completed ands associated with the claims file, and this matter is returned to the Board for further review. Subsequently, a May 2013 rating decision granted a higher 30 percent rating for the Veteran's tinea versicolor, effective May 3, 2013. As this did not constitute a grant of the maximum benefit sought on appeal, this matter remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) ("on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."). The Board has considered, in the context of the Veteran's rating claims herein, whether a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the Veteran or may otherwise be reasonably implied by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted unemployability as a result of his tinea versicolor and ingrown toenails, and there is otherwise no implication of such unemployability in the evidence of record. Therefore, the issue has not been raised, and entitlement to a TDIU is not before the Board. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's tinea versicolor is manifested by lesions covering 20 to 40 percent of his entire body; it is not shown to manifest by symptoms of underlying soft tissue damage or being painful or unstable, or to require the use of constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. The Veteran's ingrown toenails (two great toes) are manifested by symptoms of pain; they are not shown to be unstable, or to manifest by symptoms of underlying tissue damage, or involvement of an area of at least five percent of the whole body or exposed areas, or to require the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. For the period prior to May 3, 2013, the criteria for an initial disability rating of 30 percent, but no more, for tinea versicolor not of the head, face, or neck have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118 (Diagnostic Code 7806) (2013). 2. For the period beginning on May 3, 2013, the criteria for an initial disability rating in excess of 30 percent for tinea versicolor not of the head, face, or neck have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118 (Diagnostic Code 7806) (2013). 3. The criteria for an initial disability rating of 10 percent, but no higher, for ingrown toenails have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118 (Diagnostic Code 7804) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for higher initial ratings for his service-connected tinea versicolor and ingrown toenails, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, the Board finds that notice letters dated in November 2009 and December 2009 fully satisfied the notice requirements of the VCAA, which letters explained how VA assigns disability ratings and effective dates. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's private treatment records are all in the claims file. The Veteran has not referenced any outstanding records for VA to obtain relating to his claim. In that regard, the Board noted in its February 2013 remand that there were no post-service treatment records in the claims file whatsoever, and directed that the Veteran be provided with another opportunity to identify post-service treatment so that any outstanding treatment records could be obtained and associated with the claims file. Pursuant to the Board's remand directive, in February 2013, a notice was sent to the Veteran asking that he identify any outstanding treatment records relating to his claim, and to that end, that he provide any necessary Forms 21-4142. In response, in March 2013, the Veteran submitted a completed Form 21-4142 identifying treatment by Dr. M.W. relating to his tinea versicolor. The AMC requested the private treatment records from Dr. M.W., which were later received and associated with the claims file in June 2013. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The Veteran was provided with VA examinations relating to his tinea versicolor and ingrown toenails in December 2009. The December 2009 VA examiner noted with regard to the Veteran's tinea versicolor that he had very few lesions and that it was mostly active in the springtime. Therefore, in February 2013, the Board remanded the Veteran's tinea versicolor rating claim so that he could be provided with a new VA examination during an active stage of the disease. Pursuant to the Board's remand directive, the Veteran was afforded a new VA examination in May 2013, at which time the examiner noted that the Veteran's tinea versicolor covered 20 to 40 percent of his whole body (and, therefore, was clearly in an active stage). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's tinea versicolor and ingrown toenails since he was last examined. See 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports are thorough, complete, and adequate upon which to base a decision with regard to the Veteran's claim. The VA examination reports reflect that the examiners personally reviewed the claims file, examined the Veteran, and provided sufficient detail to rate the Veteran under the applicable diagnostic criteria. With regard to the May 2013 VA examination report, therefore, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537. II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2002). Where, as in the instant case, an appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Tinea Versicolor The Veteran's tinea versicolor is currently assigned a noncompensable initial disability rating under Diagnostic Code 7806 for the period prior to May 3, 2013, and a 30 percent disability rating thereafter. The Veteran seeks higher initial ratings. The Board notes by way of background that the criteria for rating certain skin disabilities, including scars, were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). The amendments are effective for claims filed on or after October 23, 2008. The revised criteria, therefore, are applicable to the instant appeal (as the Veteran's tinea versicolor is service-connected effective January 1, 2010, the date after separation from service). Diagnostic Code 7806, dermatitis or eczema, provides a noncompensable disability rating when less than 5 percent of the entire body or exposed areas is affected, and no more than topical therapy is required during the past 12-month period; a 10 percent rating when at least 5 percent but less than 20 percent of the entire body or exposed areas is affected, or if 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 when 20 to 40 percent of the entire body or exposed areas is 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 when more than 40 percent of the entire body or exposed areas is affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). A December 2009 VA examination report reflects that the VA examiner noted that the Veteran had very few lesions, predominantly on his neck, upper back, and chest that were round to ovoid and white in color with some scaling but no signs of infection, crusting, bleeding, or discharge. It was noted that the Veteran had been using selenium sulfide shampoo for treatment, and that the lesions were more prominent in the spring months. The examiner noted that collectively, the lesions affected two to three percent of the Veteran's entire body, and zero percent of the exposed areas; it was noted that by history of the Veteran, they covered three to five percent of his total body surface area in the spring months. A diagnosis of tinea versicolor, which appears to be seasonal, mostly in the spring, was recorded. The May 2013 VA examination report reflects a diagnosis of tinea versicolor. The examiner noted that the Veteran was treating the condition with selsin lotion, and constant or near-constant use of topical medications was noted. The examiner noted that the Veteran's tinea versicolor did not involve disfigurement of the head, face, or neck. Examination revealed that the Veteran's tinea covered 20 to 40 percent of his entire body (but zero percent of the exposed area, i.e., face, neck, and hands). The examiner specifically noted that there were no other pertinent physical findings, and it was specifically noted that his tinea versicolor did not impact the Veteran's ability to work. The Board also acknowledges private treatment records in the claims file from Dr. M.W. dated from February 2012 to March 2013, which reflect that the Veteran has been followed for diagnosed tinea versicolor. A February 2012 record reflects that the Veteran's history of tinea versicolor was noted and that he requested selenium sulfide lotion/shampoo; examination revealed tinea versicolor of the posterior neck. A March 2013 record reflects that examination revealed tinea versicolor of the chest. First, the Board will address the Veteran's initial rating for his tinea versicolor not of the head, face, and neck (the head, face, and neck are addressed separately below). For the period prior to May 3, 2013, for the Veteran's tinea versicolor, the Board finds that having resolved all doubt in favor of the Veteran, the 30 percent rating currently assigned under Diagnostic Code 7806 effective May 3, 2013 should be assigned for the entire period on appeal dating back to January 1, 2010. The Board acknowledges that the 30 percent rating was assigned by the RO effective May 3, 2013 because that VA examination showed that the Veteran's lesions covered 20 to 40 percent of the Veteran's whole body, which meets the criteria for a 30 percent rating under Diagnostic Code 7806, whereas the prior VA examination in December 2009 only showed that it involved two to three percent of the whole body. As noted in the VCAA section, however, the Board remanded the Veteran's claim in February 2013 so that he could be provided with a new VA examination because the December 2009 VA examination was not obtained during a very active phase of the Veteran's tinea versicolor. Thus, the only VA examination of record for the entire period on appeal that was provided during an active phase of the Veteran's tinea versicolor is the May 2013 VA examination. Therefore, the Board will resolve doubt in favor of the Veteran and find that the level of severity of the Veteran's symptomatology at the time of the May 2013 VA examination, during an active phase of his tinea versicolor, was the same throughout the period on appeal so as to entitle the Veteran to the higher 30 percent rating for the period prior to May 3, 2013, and therefore for the entire period on appeal. For the entire period on appeal, however, the Board finds that the Veteran's tinea versicolor symptoms do not more nearly approximate the criteria for a disability rating in excess of 30 percent. The next higher, 60 percent rating criteria under Diagnostic Code 7806 contemplate symptoms covering more than 40 percent of the total body or exposed body, or requiring prescribed corticosteroids or other immunosuppressive drugs on a near constant basis in the previous year. As shown above, however, the May 2013 VA examiner noted that the Veteran's lesions only covered 20 to 40 percent of the whole body, and none of the exposed areas. Also, the Veteran has been consistently noted as using selenium sulfide shampoos and lotions, not corticosteroids or other immunosuppressive drugs. Therefore, there is no evidence of record supporting a higher 60 percent rating under Diagnostic Code 7806 is not warranted. The Board has considered whether the Veteran would be entitled to a higher rating under any other diagnostic codes. There is no evidence, however, that the Veteran's tinea versicolor is deep (associated with underlying tissue damage) so as to entitle him to consideration of a rating under Diagnostic Code 7801. The maximum rating available under Diagnostic Code 7802 is 10 percent for a superficial scar measuring 144 square inches or more, which is less than the 30 percent rating currently assigned. Finally, there is no evidence that the Veteran's tinea versicolor is unstable or painful so as to entitle the Veteran to an additional, separate rating under Diagnostic Code 7804. Therefore, the Board finds that a preponderance of the evidence is against finding that a higher initial rating in excess of 30 percent disabling is warranted for the Veteran's tinea versicolor not of than the head, face, and neck. The Board has considered whether an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 extraschedular rating. With respect to the first prong of Thun, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's tinea versicolor is inadequate. A comparison between the level of severity and symptomatology of the Veteran's tinea versicolor with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the 30 percent rating assigned for his tinea versicolor contemplates his skin manifestations involving 20 to 40 percent of his body that are not deep, painful, or unstable, and the 10 percent rating for his tinea versicolor of the head, face, and neck contemplates his symptoms of scaliness and some level of disfigurement. As such, extraschedular rating is not appropriate. In summary, the Board concludes that a 30 percent initial disability rating is warranted for the Veteran's tinea versicolor for the period prior to May 3, 2013, but that a disability rating in excess of 30 percent is not warranted for the entire period on appeal. B. Ingrown Toenails The Veteran's ingrown toenails are currently assigned a noncompensable rating under Diagnostic Code "7899-7819," referencing the Diagnostic Code 7804 rating criteria, effective January 1, 2010. See 38 C.F.R. § 4.118 (2013). The Veteran seeks a higher initial rating. Diagnostic Code 7819, benign skin neoplasms, provides for rating as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Diagnostic Code 7804, scars, unstable or painful, provides a 10 percent rating for one or two scars that are unstable or painful, 20 percent for three or four, and 30 percent for five or more. Note (1) provides that an unstable scar is one where there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Veteran was provided with a VA examination in December 2009. The December 2009 VA examiner noted that between 1999 and 2007, the Veteran had both great toenails removed (apparently due to being ingrown), and that since 2007, the Veteran's two great toenails have not grown back. The examiner noted that the Veteran may have some pain. Physical examination revealed that both great toenails were almost completely absent. The examiner noted that the condition involved zero percent of the whole body area, and zero percent of the exposed areas. A March 2013 private treatment record from Dr. M.W. reflects that a diagnosis of bilateral ingrown toenails was recorded. In light of the above evidence of record, the Board finds that a higher 10 percent initial disability rating for painful ingrown toenails is warranted under Diagnostic Code 7804, which provides a 10 percent rating for painful scars. The Board has considered whether the Veteran would be entitled to a higher rating under any other diagnostic code. A separate rating under Diagnostic Code 7800 is not warranted because it pertains to scars of the head, neck, and face. A separate rating under Diagnostic Code 7801 is not warranted because the Veteran's ingrown toenails are not shown to be deep (associated with underlying tissue damage). A separate 10 percent rating is not warranted under Diagnostic Code 7802 because clearly, the Veteran's two toenails do not involve an area of 144 square inches or greater. And a separate rating under Diagnostic Code 7806 is not warranted because the Veteran's ingrown toenails are not shown to involve at least five percent but less than 20 percent of the entire body or exposed areas, or to require the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. The Board has considered whether extraschedular consideration is warranted. With respect to the first prong of Thun, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's ingrown toenails is inadequate. A comparison between the level of severity and symptomatology of the Veteran's ingrown toenails with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, particularly his only symptom of pain. As such, extraschedular rating is not appropriate. In summary, with regard to the Veteran's ingrown toenails, the Board concludes that a 10 percent initial disability rating is warranted; a preponderance of the evidence is against assigning a higher rating, and the benefit of the doubt rule is not for application. ORDER For the period prior to May 3, 2013, entitlement to a 30 percent disability rating for tinea versicolor not of the head, face and neck is granted, subject to regulations applicable to the payment of monetary benefits. For the period beginning on May 3, 2013, entitlement to a disability rating in excess of 30 percent for tinea versicolor not of the head, face and neck is denied. Entitlement to a 10 percent disability rating for ingrown toenails is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ BETHANY BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs