Citation Nr: 18150851 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 18-01 702 DATE: November 15, 2018 ORDER An initial rating in excess of 10 percent for tinea versicolor is denied. An effective date earlier than February 7, 2014, for the grant of service connection for tinea versicolor, is denied.   FINDINGS OF FACT 1. The Veteran’s tinea versicolor does not encompass more than 20 percent of his entire body or 20 percent of exposed areas affected, and he does not use any type of medication, topical or systemic, to treat his skin condition. 2. A March 2003 rating decision that denied service connection for a skin condition was not appealed. 3. The claim to reopen a previously denied claim of service connection for a skin condition was received on February 7, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 1507; 38 C.F.R §§ 3.102, 4.3, 4.7, 4.118 Diagnostic Code (DC) 7806; 38 C.F.R. § 4.118, DCs 7806, 7813, 7820 (2017). 2. The March 2003 rating decision that denied service connection for a skin condition is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. The criteria for assignment of an effective date earlier than February 7, 2014, for the award of service connection for tinea versicolor, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1988 to December 1982. The case is on appeal from a June 2014 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 10 percent for tinea versicolor. Legal Criteria The Veteran’s skin disorder has been rated under 38 C.F.R § 4.118, DC 7820-7806. In this case, DC 7820 applies to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases). It directs that the disability be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. Tinea conditions are typically evaluated under DC 7813 for dermatophytosis. In any case, DC 7813 has the same criteria as DC 7820. In this case, the Veteran’s tinea versicolor has been rated pursuant to DC 7806. This is appropriate as it is the predominant type of disability compared to possible disfigurement or scars. Under the regulations in effect at the time the Veteran filed his claim in February 2014, DC 7806 provided a 10 percent evaluation of at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas affected, or; when 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. A 30 percent evaluation is warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted if the skin condition covers 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. However, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a “General Rating Formula for the Skin” for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended DCs 7801,7802,7817,7819,7825, 7826, 7827,7829. See 83 Fed. Reg. 32,592 (July 13, 2018). The claims pending prior to the effective date will be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the new General Rating Formula for the Skin, a 10 percent rating will be assigned if the disability meets one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating will be assigned if the disability meets one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating will be assigned if the disability meets one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2018). For the Veteran’s case, the results and pertinent criteria are essentially the same; thus, further RO consideration is not necessary. Background and Facts A July 2013 VA treatment record indicates that the Veteran complained of a rash on his chest, back, and his abdomen that was frequently pruritic and burned. The treating VA physician described the Veteran’s rash as “lace-like, irregular, macular, mildly hyper-pigmented/erythematous [] over [the Veteran’s] chest, back, proximal upper arms and abdomen; no scale noted; no suspicious lesions.” The treating VA physician prescribed ketoconazole cream to be applied daily to the affected area for two to three months. An August 2013 VA treatment record shows that the Veteran was experiencing undesirable side effects from the ketoconazole cream, and was advised to stop using it. A February 2014 VA treatment record indicates that although the Veteran had a history of tinea versicolor, it was not evident on physical examination. The Veteran reported that his tinea versicolor is worse during the summer. The Veteran also underwent a June 2014 VA examination. The examiner reported a tinea versicolor diagnosis and that the Veteran has not been treated with oral or topical medications in the past 12 months. On physical examination, the examiner noted that the approximate total body area covered by the rash was between 5 and 20 percent, and that the approximate total exposed body area was less than 5 percent. When describing the appearance and location of the Veteran’s tinea versicolor, the examiner noted that there were fine scaly plaques on the Veteran’s back, flanks, and bilateral popliteal fossa. Analysis After a full review of the record in conjunction with the applicable laws and regulations, the Board finds that an increased initial rating in excess of 10 percent for tinea versicolor is not warranted. Under the regulations in effect at the time when the Veteran filed his claim in February 2014, the initially assigned 10 percent rating contemplates the severity of the condition. As reported in the June 2014 VA examination, the Veteran’s tinea versicolor has affected 5 to 20 percent of his entire body, which corresponds to the 10 percent rating criteria. The condition does not affect 20 to 40 percent of the entire body or exposed area. Although the Veteran used topical medication prior to the claim, the Veteran does not treat it with any medication (let alone more than topical). Therefore, the tinea versicolor does not more closely approximate the criteria corresponding to a higher 30 percent rating. Under the revised criteria, the Veteran’s tinea versicolor identically corresponds to a 10 percent rating using the General Formula for Skin based on an affected area of 5 to 20 percent of the total body and exposed area. There was not systemic therapy during the appeal period. A higher 30 percent rating is not warranted because the condition did not affect 20 to 40 percent of the total body or exposed area to require the use of systemic therapy. In short, the Veteran’s tinea versicolor does not more closely approximate the criteria corresponding to at rating in excess of 10 percent under DC 7806, using the former or revised criteria. The Board recognizes the Veteran’s contention that he is entitled to a higher rating because his tinea versicolor covers 20 to 30 percent of his body, including his back, stomach, and areas on his arms. See January 2015 Notice of Disagreement (NOD). While the Veteran is competent to attest to the areas affected by skin problems, his estimation of the coverage is not considered competent evidence as there is no medical basis for the statement of 20 to 30 percent of the body, or no identified measurements of this area. The VA examiner’s characterization of the area affected is considered more persuasive and probative of the matter as the examiner has more medical expertise to calculate such an area. Moreover, the examiner provided the total body area measurement based on the physical examination, the Veteran’s history and by noting where there are plaques and residual signs of the areas affected. For these reasons, greater evidentiary weight is placed on the June 2014 physical examination findings than the Veteran’s lay statements. In sum, the evidence does not show that it is at least as likely as not that the Veteran’s disability picture meets the criteria for the next higher rating, a 30 percent. Accordingly, the preponderance of evidence is against an initial rating in excess of 10 percent; there is no doubt to be resolved; and a higher initial rating is not warranted. See U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An effective date earlier than February 7, 2014, for the grant of service connection for tinea versicolor. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). Furthermore, the date of receipt of claim to reopen, or date entitlement arose, whichever is later, is the proper effective date for a claim to reopen. See 38 C.F.R. § 3.400(r). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Although VA has amended the claims filing process to require the filing of proper standard forms, the “informal claim” provisions are for proper application given the time period in which the Veteran’s claim was filed. Analysis In this case, the Board finds that there is no basis upon which to award an earlier effective date than February 7, 2014, the date already assigned. The evidence of record shows that the Veteran originally filed a claim of service connection for an unexplained rash and scalp/skin disorder in November 2002. In a March 2003 rating decision, the RO denied service connection for folliculitis (claimed as unexplained rash, skin, scalp disorder). The Veteran was notified of the decision by letter mailed later in March 2003, which was sent to his then current mailing address. No new and material evidence was received within a year of the decision, and the Veteran did not submit an NOD. Because the March 2003 decision was not appealed, it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The next correspondence was in February 2014 when the Veteran filed a claim of service connection for an unexplained rash, which is the same claim that was previously finally denied. In a June 2014 rating decision, the RO granted the claim, effective February 7, 2014, which was the date the new claim was received. The record does not reflect, nor does the Veteran contend, that he initiated an appeal of the March 2003 rating decision, submitted new and material evidence within the applicable one-year appeal period, or submitted another claim after his 2002 claim but prior to February 2014. As such, an effective dater earlier than the date of claim to reopen is not warranted. See 38 U.S.C. § 5110; 38 C.F.R. § 3.304(r). Instead, the Veteran contends that an effective date earlier than February 7, 2014 is warranted for the grant of service connection for tinea versicolor because his medical records note his concern with his rash dating back to 2001 and 2002, and it is the same condition he was granted service for in February 2014. See January 2015 NOD, January 2018 VA Form 9. This contention cannot result in an earlier effective date, which is governed by the date of claim to reopen because the earlier decision was not appealed. To the extent the Veteran believes there was clear and unmistakable error (CUE) in the March 2003 rating decision, he should request reversal or revision of that decision with a submission to the RO. Presently, the Board does not find there is a CUE allegation even with a sympathetic reading of the record. The Board notes that general disagreement with the way evidence was weighed does not rise to the level of CUE. In sum, the preponderance of the evidence is therefore against the claim for an effective date prior to February 7, 2014, for the grant of service connection for tinea versicolor; the benefit of the doubt doctrine is not applicable; and an earlier effective date is therefore not warranted. Ryan T. Kessel Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gray