Citation Nr: 1507328	
Decision Date: 02/19/15    Archive Date: 02/26/15

DOCKET NO.  10-27 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for bilateral tinea pedis with calluses. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Gordon, Associate Counsel


INTRODUCTION

The Veteran had active duty from December 1975 to November 1978.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, 

In April 2013, the Veteran testified before the undersigned at Travel Board hearing at the RO.  A transcript of that hearing has been associated with his claims folder.

In December 2013, this matter was remanded for further evidentiary development.  The Board finds that there is substantial compliance with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In January 2015, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R § 20 900 (c) (2014).  38 U.S.C.A § 7107 (a)(2) (West 2014).

A September 2014 rating decision granted service connection for tinnitus and bilateral hearing loss, and assigned ratings of 10 percent and noncompensable, respectively, for those disabilities.  The Veteran has not expressed disagreement with the September 2014 RO decision.

The Board notes that it appears the matter of entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU) has been raised by the Veteran and his representative.  See January 2015 Brief.  As such, the Veteran's claim of entitlement to a TDIU is referred to the AOJ for appropriate development and adjudication.





FINDING OF FACT

The objective evidence does not show the Veteran's service-connected bilateral tinea pedis with calluses productive of symptomatology consistent with at least 5 percent of the entire body or exposed areas affected or systemic therapy, such as corticosteroids or other immunosuppressive drugs; with no evidence of scarring of at least 6 square inches (39 sq. cm), unstable or painful scars, or resulting limitation of motion.


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral tinea pedis with calluses have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7806, 7813 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

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, 5126 (West 2014) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Under the VCAA, VA 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

This appeal arises from disagreement with the initial rating assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to 'downstream' questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  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 the downstream elements.  Id.  There has been no allegation of such error in this case.

In addition, the RO obtained the Veteran's service treatment records, post-service private treatment records, VA treatment records, VA examination reports, and lay statements.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file.  Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified treatment records.

II. Analysis 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held when an appellant has expressed dissatisfaction with the initial rating assigned following an initial award of service connection for a disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings.  Fenderson, 12 Vet. App. 119.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).

The Veteran filed a claim for entitlement to service connection for a bilateral foot disability in February 2009. 

Some of the rating criteria for skin disabilities were amended, effective October 23, 2008.  However, the amendments pertained to scars.  Therefore, the amendments did not affect Diagnostic Code 7806, which is applicable in this case and has remained unchanged.

The Veteran's service-connected tinea pedis is rated by analogy (the rating criteria directs that tinea pedis is to be rated depending upon the predominant disability) as noncompensable under Diagnostic Code 7806, 38 C.F.R. § 4.118.  Under this code section, a zero percent rating is assigned for dermatitis covering 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.  Id.  

A 10 percent rating is assigned for dermatitis covering 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.  Id.  Higher ratings are assigned for greater coverage of dermatitis or greater use of systemic therapy.  Id.

VA treatment records indicate that the Veteran continues to receive treatment with a topical ointment and ibuprofen (when necessary) for a chronic skin condition affecting his feet.  The severity and precise nature of the condition varies, but has included such symptoms as: severe pain, burning, throbbing, multiple calluses, corns, and onychomycosis.  

On May 2009 VA examination, the examiner noted a history of and current complaints of bilateral foot calluses.  The Veteran had a bilateral callous debridement done during VA treatment prior to the examination.  On physical examination, there was callous formation at the lateral ball and heels of both feet recently shaved down by podiatry, with some residual hard skin at lateral ball of both feet, especially at first and second metatarsal joints great toes bilaterally.  The diagnoses were bilateral callous formation and bilateral foot tinea pedis status post recent treatment.  Less than 2 percent of the total body area was affected and 0 percent of the exposed area affected the hands, face, head, or neck.  There was some minimal scaly skin between metatarsals consistent with recent treatment for tinea pedis.  There was no redness of the skin at toes or feet.  Less than 2 percent of the total body area was affected and 0 percent of the exposed area affected the hands, face, head, or neck.  There was no scarring and no disfigurement.  The Veteran reported he had some functional impairment with excessive walking especially on hard surfaces caused by callous build up, which he managed by shaving down the callouses and using softening cream.  No functional impairment was noted on examination.

At his April 2013 Board hearing, the Veteran testified to treating his bilateral foot disability with prescribed medication and debridement of the calluses.  He indicated that he used cream for foot fungus.  He reported receiving VA treatment every six months.  He stated that at times, his feet swell and he cannot run after his grandchildren. 
A June 2013 VA treatment record shows that the Veteran was diagnosed with diabetic neuropathy.  He was treated with debridement of his toenails and calluses.  He was also referred by VA to the Hanger Clinic where he was prescribed diabetic socks and shoes.

Pursuant to a December 2013 Board remand, the Veteran was afforded another VA examination in April 2014.  The examiner reviewed the prior VA examination and treatment records and observed multiple painful callouses on bilateral plantar surfaces.  He diagnosed bilateral tinea pedis with calluses affecting less than 1 percent of the total body area; no exposed areas were affected.  The examiner also noted that the Veteran had peripheral neuropathy that caused pain and parethesias in his bilateral feet.  The Veteran denied any known history of diabetes.  He took prescribed medication (gabapentin) multiple times a day with minimal improvement in the pain.  The examiner noted that the impact of the Veteran's skin condition on his ability to work resulted in difficulty with prolonged standing and walking due to pain due to his peripheral neuropathy and painful callouses on bilateral feet.  He opined that due to his bilateral foot pain, it was more than likely that the Veteran could work with mostly sedentary work and light work, lifting up to 10 pounds.  It was also more than likely that he could engage in minimal work that required lifting/carrying, pushing/pulling, bending/twisting, kneeling/squatting, standing, sitting, climbing, driving and/or walking.  It was noted that he must change positions every 30 minutes as needed.  

The Board notes that the VA examination reports contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).

The Board finds that the VA treatment records and examination reports provide highly probative evidence against a compensable rating for the Veteran's tinea pedis.  Skin conditions rated under Diagnostic Code 7806 are evaluated based on the percentage of the entire body or exposed areas affected or the manner of treatment required; not the chronicity of the condition.  While tinea pedis may affect a significant percent of the Veteran's feet, there is no evidence of record indicating that tinea pedis affects at least 5 percent of his total body area or that any exposed areas (head, face, neck, hands) are affected.  In addition, although he uses topical medications for his skin disability, the Rating Schedule distinguishes topical therapy from systemic therapy in assigning disability ratings, and systemic therapy is required for a higher schedular rating under Diagnostic Code 7806.     Consequently, the Board finds that a compensable rating under Diagnostic Code 7806 is not warranted at any point during the appeal period.

The Board has also considered the applicability of alternative Diagnostic Codes for evaluating the Veteran's service connected dermatitis, but finds that the RO has appropriately rated the Veteran's tinea pedis with calluses under Diagnostic Code 7806.  There is no evidence that the head, face, or neck is involved, nor is there evidence of deep or painful scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, and 7804.   Furthermore, without systemic therapy or involvement of at least 5 percent of exposed or total body area, a compensable schedular evaluation would not be warranted under the Diagnostic Codes addressing other skin disabilities.

The Board has considered the Veteran's contentions that compensable rating is warranted for tinea pedis with calluses because it is chronic and painful.  The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences.  King v. Shinseki, 700 F .3d 1339, 1344 (Fed. Cir. 2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)).  However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria.

The Board finds that the record does not suggest, and the Veteran does not assert, that his tinea pedis affects any part of the body other than his feet; under the rating criteria the feet are not an exposed area, and it is the percent of the entire body or exposed areas that is the basis for a disability rating.  Furthermore, the frequent occurrence of a skin disability is not relevant to the rating criteria under 38 C.F.R.  § 4.118 (which includes ratings for scars and disfigurement.)

To the extent that the Veteran complains of nerve damage to his feet, specifically burning and tingling, there is no indication of record that this is related to the service-connected bilateral tinea pedis with calluses.  In fact, the evidence of record shows that the Veteran has been diagnosed with diabetic peripheral neuropathy affecting his feet and prescribed diabetic socks and shoes.  If the Veteran wishes to be compensated for such condition, he may file a claim with the local RO.

In summary, the Board has considered all possibly applicable diagnostic codes and finds no basis to assign an evaluation in excess of the currently assigned ratings for the Veteran's bilateral foot condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  In addition, staged ratings are not appropriate, as the manifestations of the bilateral tinea pedis with calluses have remained relatively stable throughout the appeal, and any increases in severity were not sufficient for a higher rating.  See Fenderson, 12 Vet. App. at 126-27.  

Additionally, the Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).  An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards.  Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Here, the manifestations of the Veteran's bilateral tinea pedis with calluses, as summarized above, are fully contemplated by the schedular rating criteria and are not exceptional or unusual.  Id.  Furthermore, the Veteran's tinea pedis does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization.  38 C.F.R. § 3.321(b)(1).  The Veteran has not been hospitalized for the claimed disability during the course of the appeal and VA examination shows that the Veteran can more than likely maintain mostly sedentary employment with light physical work.  As such, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.


ORDER

An initial compensable rating for bilateral tinea pedis with calluses is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs