Citation Nr: 1609018 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 08-23 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for tinea cruris, dermatophytosis, feet and hands, groin rash, prior to April 26, 2012. 2. Entitlement to a rating in excess of 30 percent for tinea cruris, dermatophytosis, feet and hands, groin rash, from April 26, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to May 1969, July 1969 to July 1972, December 1972 to February 1976, and January 1977 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the 10 percent rating in effect for the Veteran's service-connected skin disorder was confirmed and continued. The Veteran appealed. A Travel Board hearing was held in September 2011 before a Veterans Law Judge (VLJ) who has since retired. As per VA laws and regulations, the Veteran was offered another hearing, but he did not respond to a letter requesting guidance. As directed in the letter, it was therefore assumed that no additional hearing was desired. A copy of the transcript of the 2011 hearing is of record and has been considered. Ultimately, the claim was remanded in February 2012 for additional development, and upon rating decision in October 2012, the 10 percent rating in effect for tinea cruris was increased to 30 percent, effective April 26, 2012. More recently, the claim for increased ratings for tinea cruris, prior to and from April 26, 2012, were before the Board in August 2014, and July 2015. The claims were remanded for additional development - primarily, a contemporaneous VA examination, and the case has now been returned to the Board for further appellate consideration. Finally, the Board notes that during the course of the present appeal a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised by the Veteran. While a claim for TDIU may be part and parcel of an increased rating claim on appeal, the Board notes that the Veteran's claim for TDIU has been separately considered and denied by the RO in September 2015. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). The September 2015 decision denying TDIU has not been appealed. As such, the Board will not infer jurisdiction over the claim for a TDIU. The Board notes that the present claim is distinguishable from Rice v. Shinseki where the veteran's claim for TDIU had not been separately adjudicated. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. FINDINGS OF FACT 1. Prior to April 26, 2012, the Veteran's tinea cruris, dermatophytosis, feet and hands, groin rash, did not involve at least 5 to 20 percent of his entire body or 5 to 20 percent of the exposed areas affected, nor had it required intermittent systemic therapy for a total duration of less than six weeks during any 12-month period. It had also not resulted in any visible disfigurement or scars. 2. From April 26, 2012, the Veteran's tinea cruris, dermatophytosis, feet and hands, groin rash, does not involve more than 40 percent of the entire body or more than 40 percent of the exposed areas affected, nor is there constant or near constant systemic therapy for any 12-month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent prior to April 26, 2012, and in excess of 30 percent therefrom, for tinea cruris, dermatophytosis, feet and hands, groin rash, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 102, 3.321, 4.118, Diagnostic Codes (DCs) 7800-7806, 7813 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and implemented at 38 C.F.R. § 3.159 (2015), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a June 2006 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements/testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Board further notes that the Veteran was accorded a VA medical examination in October 2015 wherein the examiner provided the medical information addressing the rating criteria in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2015). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Background and Analysis The Veteran contends that he is entitled to a disability rating in excess of 10 percent prior to April 26, 2012, and in excess of 30 percent therefrom, for his service-connected tinea cruris, dermatophytosis, feet and hands, with groin rash. By way of background, the RO awarded service connection for dermatophytosis of the feet and hands in an August 1976 rating decision, and a 10 percent rating was assigned, effective February 21, 1976. The Veteran filed his current request for increase in June 2006. In an October 2012 rating decision, the RO increased the Veteran's rating to 30 percent, effective April 26, 2012. DC 7813 pertains to dermatophytosis, which is in turn rated as disfigurement of the head, face, or neck under DC 7800; as scars under DC 7801-7805; or as dermatitis, under DC 7806, depending upon the predominant disability. DC 7806, dermatitis or eczema, provides that a 10 percent rating is assigned when at least 5 percent, but less than 20 percent, of the entire body or of exposed areas is affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. The next higher rating, a 30 percent rating, is warranted when 20 to 40 percent of the entire body or of exposed areas is affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2015). The Board notes that rating criteria for skin disabilities were revised after VA received the Veteran's claim, effective October 23, 2008. The revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54708 (Sept. 23, 2008); see also 77 Fed. Reg. 2909 (Jan. 12, 2012) (correcting the applicability-date language for the revised rating criteria for scars). The RO evaluated the Veteran's dermatophytosis under DC 7806. See 38 C.F.R. § 4.118 (2015). The Board notes that the change in the law did not impact DC 7806, the relevant code section in this case. In conjunction with his claim for increase, VA treatment records were obtained. These documents, dated from 2008 through 2012 primarily reflect treatment for conditions other than the Veteran's skin disability. They do show that in July 2008 and June 2010, he was seen for onychomycosis of the feet/toes. When examined by VA on April 26, 2012, the final diagnoses were xerotic eczema and tinea cruris, dermatophytosis of the hand, feet, abdomen at back, and groin. (It is noted that a sebaceous cyst of the penis was also diagnosed, but that claim was addressed separately by the Board. It was denied in July 2015. Also, service connection has not been established for xerotic eczema.) At this exam, the Veteran reported that he had had dry skin since service. He also had jock itch which began in service and required topical antifungal frequently. His skin condition did not cause scarring or disfigurement of the head, face, or neck. He had been treated with topical medications for his service-connected skin diagnoses (antifungals) on a constant/near constant basis. On physical examination, the Veteran's infections of the skin covered 20 to 40 percent of total body area and 5 to less than 20 percent or exposed area. The Veteran was afforded another VA examination of the skin in June 2014. At that time, the examiner checked boxes indicating eczema involved greater than 20 percent but less than 41 percent of the total body area and infections of the skin involved less than 5 percent of the total body area. As noted by the Board in an August 2014 remand, based on the reported findings, combined together, the eczema and infections of the skin affected anywhere from approximately 21 percent to 44 percent of the total body area. It was concluded that more specificity was necessary to rate the Veteran's skin disability. A September 2014 addendum did not address this medical question. When examined by VA in September 2015 (to include numerous photos of the affected areas), the diagnoses were xerotic eczema and tinea pedis. The Veteran complained of chronic pruritic, flaking skin lesions on the majority of his body. He said that he used topical moisturizers and anti-inflammatory creams for symptom control of the lesions, and also took oral medications for control of the lesions that affected his feet. He denied flares. The examiner noted that VA dermatology notes from January 2014 through January 2015 were reviewed. They also showed diagnoses of xerotic eczema and tinea pedis. The plan was to continue the use of oral medication and topical cream for tinea pedis. At the 2015 examination, the examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. He checked the box that showed that the Veteran used oral medication (Diflucan) on a constant or near constant basis for tinea pedis. Other topical medication (Nizoral) was used for tinea pedis on a constant or near constant basis. On physical examination, infections of the skin covered less than 5 percent of total body area and no exposed area. The examiner noted that tines pedis affected the Veteran's feet and toenails. There was also some darkening of the skin folds of the Veteran's groin. These areas affected less than 5 percent of the total body area. The examiner noted that the Veteran's diagnosed xerotic eczema was a separate diagnosis and disability from the diagnoses of tinea pedis, dermatophytosis, or groin rash. He explained that eczema was a chronic skin condition that resulted from an over production of skin cells. This was closely related to two other inflammatory disorders, asthma and environmental allergies, which all arose from the same inflammatory mechanism. Tinea pedis was a fungus skin infection. Given this, it could be noted that these diagnoses arose from different causes. The examiner further noted that the Veteran was treated for many years for environmental allergies with injections of allergen extracts (allergy shots), which was the more likely association and etiology of his eczema. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim for his skin condition both prior to April 26, 2012, and therefrom. The Board finds that the most probative evidence of record regarding the severity of his service-connected skin condition is the VA examination reports of record. These reports have been summarized in detail above. Prior to April 26, 2012, the Veteran's skin condition was not shown to cover at least 5 to 20 percent of his entire body or 5 to 20 percent of the exposed areas affected, nor had it required intermittent systemic therapy for a total duration of less than six weeks during any 12-month period. It had also not resulted in any visible disfigurement or scars. The evidence of record showed the Veteran's continued treatment with topical steroids prior to April 26, 2012, with apparently minimal symptoms as evidenced by VA treatment records from 2008 forward showing treatment for other conditions but not dermatophytosis. Beginning April 26, 2012, the Veteran was shown to have a service-connected skin disability that affected 20 to 40 percent of his total body area. Treatment consisted of topical antifungals on a constant/near constant basis. Subsequently dated records, to include VA examination in September 2015 show that the Veteran's primary skin problem is eczema which is a separate skin condition for which service connection is not in effect. As indicated above, at the 2015 recent examination, his eczema is not a fungal infection and is not part and parcel of his service-connected skin disorder. It is that condition which covers over 40 percent of his total body area. His service-connected dermatophytosis covers less than 5 percent. Still, it is noted that the RO awarded an increased rating of 30 percent based on body area covered upon rating action in October 2012. The VA Appeals Management Center did not find sustained improvement at the time of the September 2015 examination, however, and took no action to reduce the 30 percent rating. However, it is clear that a rating in excess of 30 percent is not warranted for the period from April 26, 2012, in that dermatophytosis of the feet, hands, and groin, does not result in more than 40 percent of total body area or exposed areas affected and does not require constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs in the last 12 month period. (In September 2015, he was taking only an antifungal drug orally.) In sum, the criteria for higher ratings have not been met for either period on appeal. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. §5107(b) (West 2014). Additional Considerations 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) (2015). 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 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 skin condition are inadequate. A comparison between the level of severity and symptomatology of the Veteran's skin condition with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms he experiences. Specifically, the Veteran primarily reports flaking lesions over much of the Veteran's body, but these are due to nonservice-connected eczema. The 10 and 30 percent ratings under DCs 7806-7813 during the timeframes on appeal are specific for such symptomatology. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disability on appeal. 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) (2015) is not warranted. ORDER Entitlement to a rating in excess of 10 percent for tinea cruris, dermatophytosis, feet and hands, groin rash, prior to April 26, 2012, is denied. Entitlement to a rating in excess of 30 percent for tinea cruris, dermatophytosis, feet and hands, groin rash, from April 26, 2012, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs