Citation Nr: 1512480 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 09-04 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for tinea with onychomycosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to June 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2006, July 2006, September 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has recharacterized the issue to better reflect the Veteran's contentions. This issue was previously remanded by the Board in September 2012. The issue has returned to the Board. The most recent October 2012 VA examination diagnosed the Veteran with seborrheic dermatitis, a separate skin condition, which has not been addressed by the AOJ. Consequently, the Board refers this issue to the AOJ for appropriate action. FINDING OF FACT For the entire period on appeal, the Veteran's service connected tinea with onychomycosis is manifested by intermittent involvement of areas such as the hands, feet, chest, back and groin with at worst, 40 percent of entire body involvement and has not required systemic therapy of corticosteroids or immunosuppressive drugs, nor resulted in characteristic disfigurement of the head, face or neck; the diagnostic criteria adequately describe the severity and symptomatology of his skin disorder. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for a service-connected tinea with onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Analysis As noted above, the Board most recently remanded this claim in September 2012 for further development, specifically to obtain updated VA treatment records and afforded the Veteran an appropriate VA skin examination. The VA treatment records were associated with the claims file and the Veteran was afforded the appropriate VA examination in October 2012. The claim was readjudicated in a February 2013 supplemental statement of the case (SSOC). The Board finds that there has been effective compliance with its remand instructions such that no further action is necessary in regard to the appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). VA's Duty to notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Letters dated in April 2006 and October 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In regards to the increased rating claim, the Board notes that in cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection has already been granted for the claims, VA's notice obligations with respect to that issue are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (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]. VA has met its duty to assist the Veteran in the development of the claim. The Veteran's VA treatment records and examinations been associated with the claims file. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated nor does the record show the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The Veteran has no identified private treatment records relevant to his claim. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. With respect to claims for increased ratings, 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 the 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). In this case, the Veteran was provided a VA examination most recently in October 2012 to evaluate the current severity of his skin condition. The VA examiner considered the Veteran's complaints and contentions, as well as the service treatment records, post-service treatment records, and conducted a physical examination. The VA examiner provided a thorough description of the Veteran's current sarcoidosis condition. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for increased ratings. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. Increased rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Where entitlement to compensation has already 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). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Background By way of history, the Veteran filed an increased rating claim in March 2006 from which his appeal stems. The Veteran was denied a compensable rating for mild tinea by the RO in a May 2006 rating decision. In a July 2006 RO rating decision, he was granted an increased 30 percent rating, effective March 21, 2006. After the Veteran failed to appear at a scheduled VA examination, a September 2007 RO rating decision proposed a rating reduction. In the September 2012 Board decision, the Board restored the Veteran's 30 percent rating for tinea and interpreted the increased rating claim as stemming from the original March 2006 claim, discussed above. The Veteran was afforded a VA skin examination in July 2006. The Veteran's tinea onset in service around 1972 and the course of condition was progressive. Skin symptoms included scaling and pruritus between toes, groins, back and chest. There were no systemic symptoms. Tinea required near constant daily topical cream and shampoo for the past 12 months prior to the examination. The treatments were not a corticosteroid or an immunosuppressive. The Veteran reported his rashes onset in 1972 in his chest, groin, feet and back but it was progressing and he was using the medication more and more. Other significant examination findings included the groin with scaling plaques, feet with scaling plaques over soles and in between toes, back with few hyper pigmented plaques and a few follicular papules. The percentage of exposed areas was 0 percent and the entire body was 40 percent affected. There was no disfigurement. The diagnosis was tinea. The Veteran had multiple types of tinea, tinea cruris (of the groin), tinea pedis (of the feet) and tinea versicolor (of the back and chest). The above conditions did not have significant effects on activities of daily living and did not interfere with gainful employment. The Veteran was afforded a VA examination in October 2007. The Veteran provided a history of his condition. The Veteran presented with a recent flare of his dermatitis on the groins. A skin symptom included itching and there were no systemic symptoms. Tinea was treated constantly with a topical treatment which was not a corticosteroid or an immunosuppressive. The Veteran had temporary relief with the topical medications but the condition recurred. The general skin examination including the feet, inguinal folds and axillary areas did not reveal any active areas of involvement although the Veteran claimed he was very itchy, in particular on the feet. No diagnosis could be given at the time of the examination because there were no abnormal skin findings. There were no functional or occupational disabilities from his condition. VA treatment records reflect ongoing use of prescription topical medications to treat skin problems such as tinea. The Veteran reported a flare up of a tineal rash in his groin and under his moustache in a May 2008 treatment record. A physical examination performed at this time revealed erythema of the mustache line, right thigh, and scrotum. Additionally, an October 2008 VA treatment record reflects the Veteran's report of experiencing a pruritic rash on his neck for two weeks prior to the time of treatment. In April 2012, the Veteran was diagnosed and treated for seborrheic dermatitis and atopic dermatitis. The Veteran was most recently afforded a VA skin examination in October 2012. The Veteran had a diagnosis of seborrheic dermatitis, diagnosed in 2010, carbuncle of buttock (resolved) from 2007, tinea pedis from 1971, tinea cruris/corporis from 1971 and onychomycosis from 1971. The Veteran provided a history of his skin conditions. He had been consistently taking medications since 1975 for the conditions. The fungal infection had never gone away and was worse on his feet over the last few years. There was cracking on his feet and some pain when the skin cracked. In these cases, he treated the open wound with Neosporin and when pain alleviated he resumed his antifungal treatment. Once he stopped using the medication the skin quickly got worse. He was starting to get skin flaking on his hands, though his chest fungal infection had improved considerably on the medication. The fungal rash occurred on his testicles, groin area and buttock region. He was diagnosed with a carbuncle of his buttocks and was treated for this condition. The carbuncle had resolved. The Veteran was employed as an electronic technician and reported missing work about 2 days per month due to problems with skin fungus. Upon physical examination, the Veteran's face and neck had a waxy brown (hyper pigmented), slightly scaly, confluent patchy areas of discoloration in malar region and chin which was consistent with seborrheic dermatitis. Roughly 5 to 10 percent was exposed skin area due to dermatitis. Tinea cruris/corporis was scaly, plaque-like raw regions in the groin. This was 10 percent of the total body area with non expose. The back and chest had minimal tinea in patch-like regions that were non-scaling. No areas were exposed and less than 5 percent of total body area was affected. Tinea interdigital of the hands and feet had less than 5 percent of exposed area (hands) affected. Tinea pedis affected the Veteran's feet bilaterally with onychomycosis in toes 1 and 2 of both feet. Carbuncle was resolved. The Veteran's skin condition was noted to caused scarring or disfigurement of the head, face and neck due to seborrheic dermatitis. The Veteran had chronic seborrheic dermatitis of the face with waxy brown (hyper pigmented, slightly scaly, confluent patchy areas of dislocation in the malar region and chin consistent with seborrheic dermatitis. Roughly 5 to 10 percent of exposed skin area was affected. The Veteran did not have any benign or malignant skin neoplasms. There was no systemic manifestation due to any skin diseases. The Veteran was treated with topical corticosteroids and other topical medications on a constant/near constant basis. The examiner did not report any systemic corticosteroid or other immunosuppressive medications. The Veteran had not had any treatments or procedures other than topical medications in the 12 months prior to the examination for exfoliative dermatitis or papulosquamous disorders. The Veteran had not had any debilitating or non-debilitating episodes in the past 12 months prior to the examinations due to urticarial, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran's visible skin conditions included dermatitis which affected less than 5 percent of total body area and 5 to less than 20 percent of exposed area and infections of the skin (tinea) which covered 5 to less than 20 percent of total body area and less than 5 percent of exposed area. The Veteran's skin conditions impacted the Veteran's ability to work because the tinea could be exacerbating by working in hot, damp environments and in poorly ventilated clothing. The Veteran's skin condition caused discomfort which lead to increased absenteeism. The skin condition did not interfere with activities of daily living. Analysis The Veteran asserts entitlement to an increased rating for his tinea with onychomycosis. The Veteran's tinea with onychomycosis has been evaluated as Diagnostic Code (DC) 7813-7806 as 30 percent disabling. 38 C.F.R. § 4.118. The specific order of the diagnostic codes indicates that the skin disability is rated on the basis of dermatitis/eczema. See 38 C.F.R. § 4.27. DC 7813 includes the rating criteria for tinea pedis and tinea cruris. Pursuant to this rating criteria, these disabilities should be evaluated under the rating criteria for disfigurement of the head face or neck (DC 7800); the rating criteria for scars (DC 7801-7805); or the rating criteria for dermatitis (DC 7806); depending on the predominant disability. 38 C.F.R. § 4.118. The evidence of record reflects the RO's determination that the Veteran's tinea is most analogous to dermatitis. The Veteran's claim was filed in March 2006. While the Veteran's claim was pending, new rating criteria for evaluating skin disabilities became effective on October 23, 2008; these regulations apply only to claims filed on or after October 23, 2008, or when requested by the Veteran. Diagnostic Codes 7806 and 7913 were not altered by the regulatory change in October 2008 and the previous and current versions of the diagnostic code are identical. As noted above the Veteran has been rated at 30 percent disabling throughout the course of the appeal, which reflects 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 required for a total duration of six weeks or more, but not constantly, during the past 12 month period. Under DC 7806, a maximum 60 percent evaluation is assigned for 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. The VA examiners have noted significantly less involvement of the skin area than is required for an increased evaluation; the most recent 2012 VA examiner found the Veteran's infections of the skin (tinea pedis, tinea cruris/corporis, onychomycosis) affected from under 20 percent of the Veteran's total body area and under 5 percent of exposed area and the Veteran was symptomless during his October 2007 examination. In addition, all three VA examiners reported no use of systemic therapy involving corticosteroids and no immunosuppressive drugs. Accordingly, an increased evaluation is not warranted under Diagnostic Code 7806, for any portion of the period on appeal. The Board has also considered whether an increased rating was warranted under Codes 7801-7805 for scars. Notably, these criteria were revised effective when the regulations pertaining to skin disabilities were amended. However, because the Veteran's claim was pending before October 23, 2008, and the record does not show that he has elected to have this issue adjudicated under the new criteria, his claim will only be evaluated under the rating criteria in effect prior to that date. Under the criteria in effect prior to October 23, 2008, Code 7801 applied to ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars in an area or areas exceeding 6 square inches (39 sq. cm.) were to be rated 10 percent. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were to be rated 20 percent. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were to be rated 30 percent. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) were to be rated 40 percent. Note (2) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides a maximum 10 percent rating for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7803 provides a maximum 10 percent rating for superficial unstable scars. Note (1) specifies that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 7804 provides a maximum 10 percent rating for superficial scars that are painful on examination. Note (2) under Codes 7802 and 7803 and Note (1) under Diagnostic Code 7804 specify that a superficial scar is one not associated with underlying tissue damage. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The evidence shows there are no scars associated with the tinea. The October 2012 VA examiner clearly identified that scarring or disfigurement of the head, face or neck was caused by chronic seborrheic dermatitis of the face, and the issue has been referred to the RO for consideration. The record does not show any disfigurement or scars associated with the service connected tinea. Therefore, separate or higher ratings cannot be assigned under those Diagnostic Codes. The Board has considered the applicability of other diagnostic codes pertaining to the skin. The Veteran has not been diagnosed with any of the disabilities covered by DCs 7815 (bullous disorders), 7816 (psoriasis), 7817 (malignant skin neoplasms), 7818 (benign skin neoplasms), 7820 (cutaneous manifestations of collagen-vascular diseases), 7822 (papulosquamous disorders), 7823 (Vitiligo) 7824 (keratinization), 7825 (urticaria), 7826 (vasculitis, primary cutaneous), 7827 (erythema multiforme; toxic epidermal necrolysis), 7828 (acne), 7829 (chloracne), 7830 (scarring alopecia), 7831 (alopecia areata), 7832 (hyperhidrosis), or 7833 (malignant melanoma). 38 C.F.R. § 4.118, DCs 7815-7818, 7820-7833. Nor is his current skin disability more analogous to one of these Diagnostic Codes than Diagnostic Code 7813, which he is presently rated. Accordingly, a rating under any of those diagnostic codes would not be appropriate. Lastly, the Board recognizes that the Veteran's skin conditions have been shown to have active and inactive stages. Where the evaluation of such a disability that fluctuates in degree of disability is at issue, an examination of the disability during an active stage or during an outbreak is generally required. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (noting that the frequency and duration of skin outbreaks and the appearance and virulence of symptoms during such outbreaks must be addressed). However, the Veteran has been afforded multiple VA examinations, at different times of the year, and during both active and inactive stages of the variously diagnosed skin conditions. Moreover, the Veteran has not indicated that his symptoms have worsened since his most recent VA examination in 2012. Therefore, the Board finds that the results of that examination, in tandem with the other pertinent evidence detailed above, sufficiently represent the severity and provide a sufficient overall picture of the Veteran's service-connected skin disorders. The Board further finds that such evidence collectively establishes that the Veteran is not entitled to higher rating for his skin disorders under the applicable schedular criteria. Extraschedular consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected tinea with onychomycosis are inadequate. A comparison between the level of severity and symptomatology of the Veteran's tinea with onychomycosis with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In sum, the weight of the competent and credible evidence shows that the Veteran's tinea with onychomycosis does not warrant separate or higher ratings, on either a schedular or extraschedular basis. The Board has considered the assignment of staged ratings, but has ultimately concluded that the above evaluations have most nearly approximated the Veteran's service-connected disabilities throughout the entire pendency of this appeal. See Hart, 21 Vet. App. at 509-10. Moreover, while mindful of the benefit-of-the doubt rule, the Board has determined that this rule is not for application since the preponderance of the evidence weighs against the Veteran's increased rating claims. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for tinea with onychomycosis is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs