Citation Nr: 1800784 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 03-25 181A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for pityriasis rosea and tinea cruris. 2. Entitlement to a total disability rating based on individual unemployability as due to service connected disabilities (TDIU) prior to June 2, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969, from May 2000 to September 2000, from June 2001 to September 2001, from May 2003 to September 2003 and from May 2004 to September 2004. In addition, the Veteran had service in the Army Reserves. This matter is before the Board of Veteran's Appeals (Board) on appeal from March 2004 and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified at a video conference hearing in September 2014. A transcript of the hearing has been associated with the claims file. Previously the Veteran's claim of service connection for a right hip disability was before the Board in February 2016. However, in a December 2016 rating decision service connection was granted effective March 5, 2002. As this constitutes a full grant of benefits sought on appeal the issue is not relevant. AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issue of entitlement to a total disability rating based on individual unemployability as due to service connected disabilities (TDIU) prior to June 2, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Pityriasis rosea occurred in service and again during the appeal period. 2. The Veteran has a diagnosis of tinea cruris. 3. Tinea cruris did not manifest during service and is not related to service. CONCLUSIONS OF LAW 1. Tinea cruris were not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Pityriasis rosea was incurred in wartime service. 38 U.S.C.A. § 1110. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the hearing, the VLJ clarified the issue, and explained a service connection claim. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Compliance with Prior Remand Most recently the case was before the Board in February 2016. In addition, the case was before the Board in November 2014. The case was remanded most recently in February 2016 for additional development. The Veteran was afforded a VA supplemental opinion in April 2016. As such the Board finds there has been substantial compliance with the prior remand. III. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (b) (West 2012) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Analysis The Veteran contends that service connection is warranted for a skin disorder to include pityriasis rosea and tinea cruris. As the Veteran reports he developed pityriasis rosea in February 1969 and this has continued since active service. The Veteran's service treatment records (STRs) have been associated with the claims file. In February 1969 the Veteran was seen for an extensive eruption of lesions suggestive of pityriasis rosea. See February 24, 1969 STRs. At a follow up on February 27, 1969, the Veteran was seen for pityriasis rosea and a refill of calamine lotion was placed as well as a script for Periactin. See February 27, 1969 STRs. On examination at a dermatology consult, it was noted a generalized scaly eruption with slight itching which began as a spot on his chest and within 2 weeks spread to include most of his body. Examination revealed macular popular diffuse eruptions with confluency of lesions involving the trunk, extremities, neck and sides of face. The examiner noted pityriasis rosea, and the Veteran was to continue applying calamine lotion and return in 1 month, if needed. See March 8, 1969 dermatology consult. At separation in August 1969 on the report of medical history the Veteran noted having had a skin disease. See August 23, 1969 report of medical history. The examiner noted the Veteran had pityriasis rosea on most of his body in February 1969, however this cleared up in April 1969 after responding to treatment and there was no recurrence, no complications and no sequela. On the report of medical examination at separation the Veteran's clinical evaluation of the skin was normal. A November 1973 report of medical examination for enlistment in the Army Reserves noted a normal skin clinical evaluation. See November 1, 1973. On a report of medical history the Veteran noted having had a skin disease and the examiner noted prior pityriasis rosea. In an August 1987 report of medical history for a Reserves examination the Veteran denied skin diseases. See August 21, 1987 report of medical history. An August 1987 report of medical examination noted a normal skin clinical evaluation. See August 21, 1987 report of medical examination. A June 1991 periodic physical and report of medical examination noted a normal skin and clinical evaluation. See June 14, 1991 report of medical examination. In a report of medical history the Veteran reported having had a skin disease. The examiner noted a skin disease in 1969, pityriasis rosea a virus. A report of medical examination in October 1996 for Reserves retention noted a normal skin clinical evaluation. See October 20, 1996 report of medical examination. The Veteran contends that his pityriasis rosea developed in service and has continued since. The Veteran reports that he has continued to have pityriasis rosacea since service and underwent treatment for the same rash he had in-service in October 2003. In his appeal to the Board of Veterans' Appeals VA Form 9, the Veteran reported that he has been taking Clotrimazole cream for 30 years as a result of a fungal infection. Further, the Veteran reported that pityriasis rosea is a virus, and that he was never told it would not reoccur, and that he believes the virus is still within his body. Additionally the Veteran has reported flare-ups of the rash between his legs, for which he regularly takes Clotrimazole cream. VA, SSA and private treatment records have been associated with the claims file. In June 2000 the Veteran was seen for a prescription refill for a chronic rash. See June 21, 2000 VA treatment record. A chronic rash in the groin area was noted and the Veteran was prescribed Clotrimazole, an antifungal medication. VA treatment records in October 2003 note possible pityriasis rosea. See October 28, 2003 VA treatment record. The Veteran reported a rash all over with severe itching and he was given Triamcinolone to apply to the affected area, and directed if it persisted or worsened to return for treatment, it was noted that if the rash was pityriasis rosea then it should resolve in approximately 6 weeks. Pityriasis Rosea The Veteran has two separate skin disorders. The record establishes that during service he had pityriasis rosea, a disorder generally self limiting. However, it may recur and during the appeal period, there was evidence of recurrence. We recognize that the recurrence was brief, however, the Court has held that disability during anytime of the appeal period establishes current disability. Unlike Gulf War cases, the general law does not have a minimum time limit for establishing the "current" disability requirement and we are aware of no pending regulation that would address this issue. Therefore, the guidance of the Court stands. Service connection for pityriasis rosea is granted. Tinea The issue is whether the Veteran's tinea disorder is related to service. The Veteran was afforded a VA examination in March 2015. The examiner noted the Veteran was diagnosed with pityriasis rosacea in 1969. In addition, the examiner noted the Veteran was diagnosed with tinea cruris in 1985, an infectious skin condition (including a bacterial, fungal or viral skin condition). The examiner noted on examination the Veteran exhibited tinea cruris with a well demarcated, hyper pigmented macular eruption on the bilateral inner thighs. The Veteran reported developing episodic skin rashes, over the years which he has relived by swimming in the ocean. Additionally, the Veteran reported regularly using an antifungal cream for a rash on his inner thigh and scrotum he has had for the past 30 years. The Veteran has been prescribed oral or topical medications for his tinea cruris within the past 12 months. The examiner noted that the Veteran does have tinea cruris, a fungal infection of the groin. The examiner found that the Veteran's prior diagnosis of pityriasis rosea is not related to his current tinea cruris. The examiner noted that pityriasis rosea is a self-limiting condition which goes away with or without treatment and usually does not reoccur. The Board finds the VA examination is entitled to probative weight. Then, the Veteran was afforded a VA opinion in April 2016. The examiner noted the Veteran had a rash on his inner thighs consistent with tinea cruris. The examiner noted based on a review of the medical literature pityriasis rosea is an acute, self-limited exanthematous skin disease which is characterized by the appearance of slightly inflammatory, oval, papulosquamous lesions on the trunk and proximal areas of the extremities. The examiner noted that pityriasis rosea typically resolves within two to three months, and it is thought to have a low likelihood for transmission, and does not recur in most patients. The Board finds this opinion is entitled to probative weight. The Board notes the Veteran's reports of pityriasis rosea in-service and since and his current symptoms and complaints and a reported connection between the two. While the Veteran is competent to testify as to his observations and ongoing symptoms. His testimony must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While there is evidence of current tinea cruris, an episode of pityriasis rosea in October 2003 and an in-service event the Board finds that the Veteran's statements as to whether his skin disorder tinea cruris is related to service are outweighed by the other competent and credible evidence of record including the March 2015 and April 2016 VA examination and opinions as well as the clinical evidence of record. The Veteran's lay assertions are outweighed by the specific reasoned opinions provided in the March 2015 and April 2016 VA opinions. The Board finds that the VA examination in March 2015 and opinion in April 2016 which were based on the examiner's medical expertise, well-reasoned rationale and review of the medical literature are more probative and credible than the lay opinions of record. At separation in August 1969 the Veteran reported having had a skin disease; however the examiner noted that the Veteran had pityriasis rosea in February 1969 but this cleared up in April 1969. On the report of medical examination at separation the Veteran's clinical evaluation of the skin was normal. Further, on numerous reports of medical examinations relating to the Veteran's Reserves service noted a normal skin evaluation. These normal finding are inconsistent with manifestations of tinea. Further the examiner noted that the Veteran has had a diagnosis of tinea cruris since 1985, which is a fungal infection of the groin, and this is not related to his in-service episode of pityriasis rosea. Tinea cruris is defined is a tinea in the groin or perineal area, sometimes spreading to nearby regions. Characteristics include circumscribed pruritic lesions with raised erythematous margins and thin dry scaling. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1929 (32d ed. 2012). The examiner noted in April 2016 that based on a review of the medical literature, pityriasis rosea is an acute, self-limiting exanthematous skin disease which is characterized by the appearance of slightly inflammatory, oval, papulosquamous lesions on the trunk and proximal areas of the extremities. As such, the Board finds these opinions are of high probative value and the Veteran's statements are outweighed by the VA opinions, as these credible probative opinions are entitled to significant weight and weight against the claim. As such service connection is not warranted. VA and private treatment records associated with the claims file do not contradict the VA examination and opinion and are absent indications of a relationship between the Veteran's tinea and service. While the Veteran's lay statements have reported his current symptoms are a result of an in-service injury the Board finds these are outweighed by the more credible and probative medical evidence of record. As such service connection is not warranted. The preponderance of the evidence weighs against finding that the Veteran's tinea cruris is related to service and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for pityriasis rosea is granted Service connection for tinea cruris is denied. REMAND The Veteran contends that is he entitled to a TDIU prior to June 2, 2014. The Board finds that a remand is warranted for additional development. Previously the case was before the Board in February 2016. The claim was remanded for additional development as the evidence indicates TDIU prior to June 2, 2014 may be warranted. As prior to this date the Veteran did not meet the standards for consideration of TDIU on a schedular basis the issue was to be referred to the Director of Compensation for extraschedular consideration. See 38 C.F.R. § 4.16(b). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. The issue of TDIU prior to June 2, 2014 has not yet been referred to the Director of Compensation for extraschedular consideration. As such, another remand is warranted. As the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration in all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate action to refer the case to the Director of Compensation for extraschedular consideration as to entitlement to TDIU prior to June 2, 2014. 2. Thereafter, take any additional development action deemed warranted and adjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs