Citation Nr: 18153255 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-38 087 DATE: November 27, 2018 ORDER Restoration of a 10 percent rating for pseudofolliculitis barbae from May 1, 2012 is granted. Restoration of a 10 percent rating for tinea versicolor from May 1, 2012 is granted. Restoration of a 10 percent rating for tinea pedis from May 1, 2012 is granted. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae is denied. Entitlement to a rating in excess of 10 percent for tinea versicolor is denied. Entitlement to a rating in excess of 10 percent for tinea pedis is denied. FINDINGS OF FACT 1. The Veteran did not receive proper notice of the proposed reduction of the rating for pseudofolliculitis barbae from 10 percent to zero percent effective May 1, 2012. 2. The Veteran did not receive proper notice of the proposed reduction of the rating for tinea versicolor from 10 percent to zero percent effective May 1, 2012. 3. The Veteran did not receive proper notice of the proposed reduction of the rating for tinea pedis from 10 percent to zero percent effective May 1, 2012. 4. The Veteran’s pseudofolliculitis barbae has not resulted in gross distortion or asymmetry of at least one feature or paired set of features, two or three characteristics of disfigurement, affected at least 20 percent of exposed or total body area, or required systemic therapy for a duration of at least six weeks. 5. The Veteran’s tinea versicolor has not affected at least 20 percent of exposed or total body area or required systemic therapy for a total duration of at least six weeks. 6. The Veteran’s tinea pedis has not affected at least 20 percent of exposed or total body area or required systemic therapy for a total duration of at least six weeks. CONCLUSIONS OF LAW 1. The reduction of the rating for pseudofolliculitis barbae from 10 percent to zero percent was improper; and, the 10 percent rating is restored, effective May 1, 2012. 38 U.S.C. § 5112 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2018). 2. The reduction of the rating for tinea versicolor from 10 percent to zero percent was improper; and, the 10 percent rating is restored, effective May 1, 2012. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105(e), 3.344. 3. The reduction of the rating for tinea pedis from 10 percent to zero percent was improper; and, the 10 percent rating is restored, effective May 1, 2012. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105(e), 3.344. 4. The criteria for a rating in excess of 10 percent for pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806. 5. The criteria for a rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. 6. The criteria for a rating in excess of 10 percent for tinea pedis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran challenges the adequacy of the September 2011 VA skin examination, contending that the examiner did not perform a complete physical examination, review the record, or review photographs the Veteran brought to the examination. The examination report indicates that a complete physical examination was performed. Such did not indicate the submission and review of any photographs. However, the Veteran submitted the photographs many months later in July 2012. It is also acknowledged that the examiner did not have access to the Veteran’s file at the time of the examination. Such is not render the examination inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner solicited an adequate lay history of the Veteran’s skin disabilities and provided a comprehensive examination. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to compensable ratings for pseudofolliculitis barbae, tinea versicolor, and tinea pedis, to include the propriety of the reductions from 10 percent to zero percent from May 1, 2012. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In the July 2012 notice of disagreement, the Veteran contends that he did not receive notice of the proposed rating reductions, because the RO sent correspondence to the wrong address. His April 2011 increased ratings claims for his service-connected skin disabilities (which precipitated the reductions) lists a P.O. box address in Orlando, Florida. Yet June 2011 correspondence from the Veteran lists a different P.O. box address that is his current address of record, suggesting that the latter is the correct one. It appears that the RO sent correspondence to both addresses during this period without seeking clarification of the correct address. See May 2011 Appeals Election Letter; July 2011 VCAA/DTA Letter. On October 15, 2011, the RO issued a rating decision proposing the rating reductions for the Veteran’s skin disabilities. On October 26, 2011, the RO sent a notification letter to the Veteran’s old P.O. box address notifying him of the proposed reductions. The Board notes that an award printout annotated by the RO and associated with the record on October 26, 2011 shows the old P.O. box address crossed out and the new address written next to it with a notation of “CADD [change of address] done.” Therefore, it appears that the RO was aware of the updated address at the time it sent the October 2011 notification letter, but nevertheless sent the correspondence to the old address. No correspondence regarding the reductions was received from the Veteran until the July 2012 notice of disagreement, after the February 2012 rating decision and notification letter (notifying him of the reductions) were sent to his updated address. Given the apparent confusion regarding the Veteran’s current address, the absence of correspondence from the Veteran, and his credible assertion that he did not receive the October 2011 correspondence, there is reason to question whether he received proper notice of the rating reductions per 38 C.F.R. § 3.105(e). Resolving such doubt in his favor, the Board finds that he did not receive the required notice for the reductions. Therefore, the reductions were improper, and the 10 percent ratings for pseudofolliculitis barbae, tinea versicolor, and tinea pedis are restored effective May 1, 2012. The Board now turns to the issues of increased ratings for the Veteran’s skin disabilities. Disability ratings are determined by comparing a veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s pseudofolliculitis barbae, tinea versicolor, and tinea pedis are rated under Diagnostic Codes 7806-7800, 7813-7806, and 7813-7806 respectively. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Diagnostic Code 7800 addresses other disfigurement of the head, face, or neck. An 80 percent rating requires visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. A 50 percent rating requires visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 30 percent rating requires visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under the General Rating Formula for the Skin, a 60 percent rating requires characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period . A 30 percent rating requires characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The use of topical corticosteroids does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Veteran is not entitled to ratings in excess of 10 percent for his pseudofolliculitis barbae, tinea versicolor, and tinea pedis. The September 2011 VA examination report indicates no skin lesions, rashes, or other visible manifestations of his skin disabilities. The examiner specified that there was no evidence of any scarring or disfigurement of the scalp, head, or face. Although oral medication for pseudofolliculitis barbae and topical corticosteroids for tinea pedis were noted, the duration of use was less than six weeks. VA treatment records document periodic rashes whose etiology, duration, and extent of exposure are unclear. In the absence of visible skin symptomology or systemic therapy for at least six weeks, there is no basis for ratings in excess of 10 percent for pseudofolliculitis barbae, tinea versicolor, and tinea pedis under any relevant diagnostic code for the skin. The Board acknowledges the color photographs submitted by the Veteran in July 2012, which were purportedly taken in July to August 2011. The photographs appear to show skin lesions. However, no such symptomology was visible at the September 2011 examination just one to two months after the photographs were taken. VA treatment records also note predominantly normal skin with periodic rashes of unspecified etiology. The weight of the evidence therefore suggests that the Veteran’s skin disabilities are mostly asymptomatic with occasional flare-ups. Such mild, transient symptomology is insufficient to support the assignment of a higher rating for any of the skin disabilities. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel