Citation Nr: 1601093 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 11-16 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris, since July 3, 2013. 2. Entitlement to a compensable rating for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris prior to July 3, 2013. 3. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active service from August 1976 to August 1982. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2015 written statement, the Veteran's representative waived initial AOJ consideration of all newly submitted evidence since the October 2013 supplemental statement of the case. 38 C.F.R. 20.1304(c). FINDINGS OF FACT 1. The skin disabilities did not cover an area of between 5 and 20 percent of his entire or exposed body area or require intermittent systemic therapy for less than six weeks during any twelve month period prior to July 3, 2013. 2. The skin disabilities did not cover any area of between 20 and 40 percent of the entire body or exposed are or require systemic therapy for a total duration of six weeks or more during any twelve month period during the period on appeal. 3. The November 2001 rating decision denying entitlement to service connection for a bilateral foot disorder is final. The Veteran did not appeal that decision and no new evidence was received by the VA within one year. 4. Evidence obtained since the November 2001 rating decision raises a reasonable possibility of substantiating the claim for entitlement to service connection for bilateral foot disorder. 5. Preexisting pes planus increased in severity during his active duty service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris, prior to July 3, 2013 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7806 (2015). 2. The criteria for a rating in excess of 10 percent for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DC 7806 (2015). 3. The November 2001 rating decision, which denied entitlement to service connection for a bilateral foot disorder, is final; new and material evidence has been submitted, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2015). 4. Resolving doubt in the Veteran's favor, a preexisting foot disorder was aggravated by service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Skin Disabilities Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. In this case, the Veteran's skin disabilities have been rated under DC 7813-7806 throughout the period on appeal, as analogous to dermatitis or eczema. These disabilities were initially assigned a noncompensable rating, and a higher 10 percent rating was awarded effective July 3, 2013. As will be discussed below, the evidence does not establish the Veteran met the criteria for higher ratings. Under DC 7806, a 10 percent rating for skin disorders is warranted for: * Covering at least 5 percent, but less than 20 percent, of the entire body or exposed areas, or * Requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past twelve month period A higher 30 percent rating is warranted for: * Covering between 20 and 40 percent of the entire body or exposed area, or * Systemic therapy required for a total duration of six weeks or more, but not constantly, during the past twelve month period 38 C.F.R. § 4.118. VA treatment records from 2009 reflect the Veteran has been diagnosed with skin disabilities, including pseudofolliculitis barbae and seborrheic dermatitis. In June 2010, he was provided with a VA examination. The examiner reviewed the claims file, as well as personally interviewed and examined the Veteran. The examiner noted that the Veteran was not prescribed any corticosteroid medications to treat his condition, but instead managed with topical treatment and shampoos. Upon examination, the examiner noted that the Veteran had dry flakes on his scalp and ear areas, as well as slight hypopigmentation in his beard area. The examiner opined the percentage of exposed area affected was 3 percent, and the percentage of total body affected was .05 percent. Following his examination, the Veteran continued to seek private and VA treatment for his skin disorders. Bumps and dryness on his face, scalp, and chest were noted in private treatment records from 2010, and he was given topical medications and shampoo for management. During his March 2013 hearing before a decision review officer, he reported his skin condition had worsened. He described his condition caused his skin to shed, which was a nuisance to him and those around him. However, he did not report his condition required new medication to manage, or estimated it covered a larger area of his body. Therefore, the evidence from this period does not establish the Veteran met the criteria for a higher rating. His service-connected skin disabilities covered an area of less than 5 percent, and no systemic therapy was required for treatment. Accordingly, entitlement to a compensable rating prior to July 2013 is not established. In July 2013, the Veteran was provided with an additional VA examination. The examiner reviewed the claims file, as well as personally interviewed and examined the Veteran. She opined the skin disabilities affected an area of between 5 and 20 percent of his exposed and total body areas for the first time during the period on appeal. Accordingly, entitlement to a 10 percent rating effective the date of this examination is warranted. However, the report from this examination does not reflect the Veteran met the criteria associated with a higher, 30 percent rating. Instead, the examiner opined that the Veteran treated his condition with topical corticosteroids, and no systemic therapy or immunosuppressive medications were required. Medical records from after this examination continue to reflect that he treated his condition with topical corticosteroid treatment only, including VA medical records as recent as August 2015. Therefore, entitlement to a rating in excess of 10 percent under DC 7806 is not established. The Board has also considered whether a separate or higher rating is warranted under any of the other diagnostic codes related to skin disorders. Diagnostic codes 7800-7805 all provide ratings based on scarring. However, the evidence does not establish, and the Veteran has not alleged, he experienced any scarring as a result of his skin disabilities. Instead, during the most recent July 2013 VA examination, the examiner specifically opined that the Veteran did not have any scarring. Therefore, entitlement to a separate or higher rating under any of these codes is not warranted. The Board has also considered whether a rating is warranted under DC 7825, relating to urticaria. Under this diagnostic code, a 10 percent rating is warranted for recurrent episodes of urticaria that occur at least four times during the past twelve month period and respond to treatment with antihistamines or sympathomimetics. The July 2013 VA examiner did indicated the Veteran experienced four or more non-debilitating episodes of urticaria in the past twelve months, but she specifically opined that he did not take antihistamines or sympathomimetics to treat these episodes. Because the language of DC 7825 uses "and" before describing response to treatment with antihistamines or sympathomimetics, the criteria for a compensable rating under this diagnostic code have not been met. Therefore, no separate or higher rating is warranted. The Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as discomfort, dryness, and flaky skin, are "like or similar to" those explicitly listed in the rating criteria, which considers percentage of body area affected by symptoms such as these. Moreover, he has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his skin disability is more severe than is reflected by the assigned rating. In view of the circumstances, the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities, and referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Next, the Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, as recently as during his February 2015 VA examination for an unrelated issue, the Veteran reported he continued to be employed at the VA Hospital. Because he continues to be employed on a full-time basis, Rice is not applicable. Service Connection for a Bilateral Foot Disorder The Veteran is also seeking to reopen his claim for entitlement to service connection for a bilateral foot disorder. This claim was previously denied in a November 2001 rating decision because the RO found there was no current disability. He did not file relevant new evidence or a notice of disagreement within one year, and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a), 20.302, 20.1103. However, previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Since the November 2001 rating decision, considerable new evidence has been submitted, including VA treatment records reflecting the Veteran is currently diagnosed with bilateral flat feet, or pes planus. Because this new evidence substantiates the reason the claim was previously denied, this evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the Veteran's claim for entitlement to service connection for a bilateral foot disorder is reopened, and adjudication of entitlement to service connection may proceed. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. On the Veteran's March 1976 entrance examination, the examiner noted he had pes planus which was "asymptomatic" and not considered disabling. Accordingly, pes planus was noted on his entrance examination and was therefore pre-existing under VA regulations. Id; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In this case, the Veteran's sought treatment for his pes planus during service. In July 1977 he reported experiencing pain in his feet, especially his left foot, since boot camp. Upon examination swelling was noted, and the reviewing medical professional diagnosed pes planus. Therefore, although pes planus was noted before his entrance to service, it was noted to be asymptomatic. The medical evidence reflects he began to experience symptoms, including pain and swelling, during his service. Therefore, the pre-existing pes planus increased in severity during his active service. The Veteran was provided with a VA examination in July 2013. This examiner opined that it was less likely than not that the Veteran's pre-existing pes planus was aggravated beyond the natural progression during his service. However, the examiner did not address the Veteran's in-service complaints of symptoms of pain and swelling. Accordingly, the Board finds this report is limited in probative value, and does not constitute clear and unmistakable evidence that the increase in severity was due to the natural progression. Based on the foregoing, the evidence does not establish that the in-service increase in severity of the Veteran's pre-existing bilateral pes planus was clearly and unmistakably due to the natural progression of the disease. Therefore, affording all benefit of the doubt to the Veteran, his pre-existing bilateral pes planus increased in severity during active duty service, and service connection is granted. Finally, under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a § 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in December 2009, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication. This letter also informed him how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and relevant private treatment records have been obtained, as have service treatment records and records from the SSA. Additionally, he was offered the opportunity to testify at a hearing before the Board, but declined. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities. The VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the claims. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 10 percent for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris, since July 3, 2013, is denied. A compensable rating for seborrheic dermatitis, pseudofolliculitis barbae, and tinea cruris prior to July 3, 2013, is denied. New and material evidence has been received and the claim for entitlement to service connection for a bilateral foot disorder is reopened. Service for a bilateral foot disorder is granted. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs