Citation Nr: 1801371 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-10 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to higher initial ratings for tinea versicolor rated 10 percent disabling prior to October 18, 2016; and 30 percent thereafter. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for tinea versicolor and assigned an initial rating of 10 percent effective May 15, 2012. The Board previously remanded this issue for further development in July 2016. In a November 2016 rating decision, the RO granted an increase to 30 percent, effective October 18, 2016. As this constituted less than the maximum benefit allowed by law and regulation, the claim for an initial higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Prior to October 18, 2016, the Veteran's tinea versicolor affected between 5 to 20 percent of the entire body, and required topical medication for a total duration of less than six weeks during the past 12-month period, but not systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. Beginning October 18, 2016, the Veteran's tinea versicolor affected between 20 to 40 percent of the entire body and did not require systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for higher initial ratings for tinea versicolor rated 10 percent disabling prior to October 18, 2016; and 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § § 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7899-7813 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Higher Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Prior to October 18, 2016, the Veteran service-connected tinea versicolor is rated 10 percent disabling pursuant to 38 C.F.R. § 4.118, DCs 7899-7813; and 30 percent thereafter pursuant to 38 C.F.R. § 4.118, DCs 7813-7806. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2017). When an unlisted residual condition is encountered which requires an analogous rating, the first two digits of the diagnostic code present that part of the rating schedule most closely identifying the bodily part or system involved, with a "99" assigned as the last two digits representing all unlisted conditions. Accordingly, the hyphenated diagnostic code used in the first stage of this case indicates that a skin disorder under Diagnostic Code 7899 is the service-connected disorder. The tinea versicolor is to be rated by analogy under 38 C.F.R. § 4.118, Diagnostic Code 7813. Diagnostic Code 7813 states that dermatophytosis is to be rated as disfigurement of the head, face, or neck (under Code 7800); scars (under Codes 7801, 7802, 7803, 7804, or 7805); or dermatitis (under Code 7806) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2017). As noted below, the Veteran's tinea versicolor is most appropriately evaluated as dermatitis under DC 7806 as there is no evidence or allegation that the disability involves characteristics of disfigurement of the head, face, or neck, or that there are resulting scars. Under DC 7806, a 10 percent rating is warranted where dermatitis affects at least five percent but less than 20 percent of the entire body or least five percent but less than 20 percent of exposed areas, 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. A 30 percent evaluation is warranted with involvement of 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. A 60 percent rating is warranted with involvement of 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. Because this is an initial rating claim, the Board will consider evidence of symptomatology from the date of service connection, which is May 15, 2012. 38 C.F.R. § 3.400 (o). The Veteran was provided a VA examination in February 2013. The examiner noted that Veteran had a diagnosis of tinea versicolor. At the examination, the Veteran reported treatment consisted of over-the-counter medication. Upon examination, the examiner indicated that infections of the skin covered between 5 to 20 percent of the total body, but none of the exposed body area. Specifically, the examiner noted that tinea versicolor affected the areas of the chest, arms, and back. The examiner further indicated that the Veteran was treated with oral or tropical medications in the past 12 months, for less than 6 weeks. The examiner did not find scarring or disfigurement of the head, face, or neck; benign or malignant skin neoplasms; or systematic manifestations due to skin diseases. The examiner indicated there was no treatment or procedures for exfoliative dermatitis or papulosquamous disorders; debilitating episodes in the past 12 months; or non-debilitating episodes in the past 12 months. The examiner also noted that the Veteran did not have hyperhidrosis, alopecia areata, scarring alopecia, vitiligo, or acne or chloracne. The examiner indicated that there were no other pertinent physical findings, or impact on the Veteran's ability to work. As previously noted, the Board remanded this case in July 2016. Pursuant to the remand directives, the RO requested that the Veteran identify and provide authorization for all medical care the Veteran received for his tinea versicolor. See August 2016 correspondence. However, the Veteran did not submit the completed form. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008). Pursuant to the July 2016 remand, the Veteran was provided with another VA examination in October 2016. The examiner conducted an in-person examination and review of claims file. The examiner noted that tinea versicolor involved the upper torso, upper back, posterior, bilateral upper arms, neck, and posterior scalp. No scarring; disfigurement of the head, face or neck; benign or malignant skin neoplasms; or systematic manifestations was noted. The examiner reported that the Veteran had been treated with oral or tropical medication in the past 12 months such as Lotrimin cream, constantly or near constantly. Upon physical examination, the tinea versicolor affected approximately 20 to 40 percent of total body area. Specifically, the examiner noted that the tinea versicolor affected 26 percent of the total body area and 4 percent of the exposed body area, in the posterior scalp. The examiner found no evidence of treatment or procedure for exfoliative dermatitis or papulosquamous disorders, or any debilitating episodes; or non-debilitating episodes. The examiner indicated there were no other pertinent physical findings, or impact on the Veteran's ability to work. Based on the evidence presented, prior to October 18, 2016 the Veteran's tinea versicolor affected a total body area only between 5 to 20 percent. The February 2012 examination revealed that none of the exposed body area was affected at that time. Review of the claims file also reveals that the Veteran's treatment included non-prescription Lotrimin cream, an anti-fungal topical medication. However, the records do not reflect treatment with corticosteroid or systemic immunosuppressive drugs for control of the disability. The VA examiner reviewed the claims file in its entirety, and noted that while that the Veteran's treatment included topical creams, he had not been prescribed any systemic therapy such as corticosteroid or immunosuppressant drugs. This evidence demonstrates that prior to October 18, 2016; there were no subjective symptoms or objective findings warranting a higher rating. Beginning in October 18, 2016, the disability affected at least 20 to 40 percent of the Veteran's total body area. The October 2016 VA examination revealed that only 4 percent of the exposed body area was affected. The VA examiner reviewed the claims file in its entirety, and noted that while that the Veteran's treatment included topical creams, he had not been prescribed any systemic therapy such as corticosteroid or immunosuppressant drugs. This evidence demonstrates that from October 18, 2016, there were no subjective symptoms or objective findings warranting a higher rating. The Board finds the VA examinations and findings probative evidence against higher ratings. The examiners possess the appropriate training, expertise and knowledge to evaluate and measure the tinea versicolor disability as well as identify and distinguish between topical and systemic therapy treatment. The examiners reviewed the entire claims file and also considered the Veteran's reported symptoms. There is no competent evidence to the contrary. In correspondence received in November 2016, the Veteran's attorney argued that the effective date for the 30 percent evaluation should be May 15, 2012. He asserted that this is the date upon which the Veteran filed for an increased rating for his service-connected tinea versicolor. The Board notes that a claim for service connection, not an increased rating, was received on May 15, 2012. Moreover, the instant decision considered whether the 30 percent rating is warranted prior to October 18, 2016, but such is not supported by the evidence. The evidence does not support additional staged ratings for any time period on appeal. Reasonable doubt was considered; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no additional expressly raised or reasonably raised issues presented on the record. ORDER Entitlement to higher initial ratings for tinea versicolor rated 10 percent disabling prior to October 18, 2016; and 30 percent thereafter is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs