Citation Nr: 18158433 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 869 DATE: December 14, 2018 ORDER A disability rating in excess of 10 percent for tinea is denied. REMANDED The issue of entitlement to a disability rating in excess of 30 percent for ischemic heart disease is remanded. FINDING OF FACT The Veteran’s service-connected tinea involves at least 5 percent, but less than 20 percent, of the body. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for tinea are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to September 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran’s Contention The Veteran contends that he is entitled to an increased rating for his service-connected tinea because it is sometimes visible on his face, head and neck. Entitlement to an increased rating for tinea Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). See 38 C.F.R. Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Rating Schedule, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Individual disabilities are assigned separate diagnostic codes. 38 C.F.R. § 4.27. When a question arises as to which of two disability evaluations applies under a particular diagnostic code, 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. Consideration must be given to increased evaluations under other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, the Veteran has been assigned a 10 percent rating for tinea effective March 30, 2012 under Diagnostic Code 7813. The rating criteria for the skin were amended, effective August 13, 2018. Generally, the amended regulations are applicable to claims received on or after the effective date. See 83 Fed. Reg. 32592 (August 13, 2008) (codified at 38 C.F.R. § 4.118). It is also the intent of the VA that claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See 83 Fed Reg 32592; see generally VAOPGCPREC 3-2000, 7-2003. The amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. Under amended Diagnostic Code 7813, tinea is to be rated under the General Rating Formula for the skin. Under pre-amended Diagnostic Code 7813, tinea was to be rated under the diagnostic codes for disfigurement of the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805) or dermatitis (Diagnostic Code 7806), depending on the predominant disability. Here, the Veteran was rated under Diagnostic Code 7806, based on the percentage of the entire body affected. The Veteran was assigned a 10 percent rating based on at least 5 percent, but less than 20 percent of the entire body affected by the condition. Under pre-amended Diagnostic Code 7806, dermatitis or eczema may be assigned a rating of 60 percent with 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. A rating of 30 percent requires 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. Under the current Diagnostic Code providing for a General Rating Formula for the Skin, a rating of 60 percent is warranted with at least one of the following: 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 rating of 30 percent is warranted with at least one of the following: 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. A rating of 10 percent is warranted with at least 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. Under pre-amended Diagnostic Code 7800, burn scars of the head, face, or neck; or, scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck, can be rated at 80 percent with 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 rating of 50 percent 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 rating of 30 percent 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. A rating of 10 percent requires one characteristic of disfigurement. The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) Scar 5 or more inches (13 or more cm.) in length. (2) Scar at least one-quarter inch (0.6 cm.) wide at widest part. (3) Surface contour of scar elevated or depressed on palpation. (4) Scar adherent to underlying tissue. (5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran was afforded VA examinations in July 2012, August 2015 and January 2017. The examiners consistently note that the Veteran’s skin condition does not cause scarring or disfigurement of the head, face or neck, that the Veteran does not treat the condition with oral or topical medications or any other treatments and that the Veteran does not have benign or malignant skin neoplasms. The July 2012 and August 2015 examinations note that the skin infection affects at least 5 percent, but less than 20 percent of the Veteran’s total body area. The July 2012 examination describes the skin condition as patches of scaly erythematous and hypopigmented dry skin with scattered scabs and excoriations located on the bilateral arms, affecting approximately 12 percent of the entire body. The August 2015 examination indicates that at least 5 percent, but less than 20 percent of the Veteran’s exposed body area is affected by the skin condition. The Veteran left the January 2017 examination before a physical examination could be conducted. The examiner noted that the medical records did not mention any treatment for the Veteran’s skin condition since the August 2015 examination. The Board finds that the medical evidence of record does not warrant a disability rating in excess of 10 percent under the pre-amendment criteria or the current criteria as the condition involves at least 5 percent, but less than 20 percent of the entire body affected. 38 C.F.R. § 4.118. Although the Veteran claims entitlement to a higher rating because his head, face and neck are at times affected by the skin condition, there is no evidence of visible or palpable tissue loss and either gross distortion of asymmetry of one feature or paired sets of features or two or three characteristics of disfigurement so as to warrant a 30 percent rating under Diagnostic Code 7800. Nor is there any evidence of scars. As noted, the three VA examinations consistently reflect the lack of any scarring or disfigurement of the head, face or neck. While the Veteran is competent to report physical symptoms, the determination of the severity of a skin disorder requires clinical observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the objective medical findings by skilled medical professionals to be probative and credible. As the preponderance of evidence is against an increased disability rating, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an increased rating for ischemic heart disease is remanded. The Veteran contends that he is entitled to a higher rating for his ischemic heart disease because it is a progressive disease that has worsened over time. The most recent VA examination for the Veteran’s heart disease occurred in January 2017. The Veteran refused any physical examination. The examiner noted that the Veteran’s METs score decreased based on his interview, reflecting a progression of the disability. The examiner also noted that the Veteran’s METs score was not solely due to cardiac function and that testing of the Veteran’s ejection fraction would render a more accurate assessment of his disability. Nevertheless, the examiner concluded that the Veteran’s level of disability was mild to moderate. The most recent VA examination and the VA treatment records reflect that the Veteran is followed by a private cardiologist. No records from the private cardiologist dated after 2012 have been associated with the file despite indications in the record evidence that the Veteran continues to treat with him. Moreover, VA treatment records reflect at least one episode of chest pain that resulted in the Veteran seeking treatment at a non-VA hospital. Specifically, the Veteran reported in 2014 that he had sought treatment for chest pain at a non-VA hospital and that multiple tests were performed. Records from that visit have not been associated with the file. The Board concludes that in order to accurately assess the Veteran’s current heart disability, the private and non-VA hospital records should be associated with the claims file and an examination should be conducted in order to determine either the Veteran’s ejection fraction and/or the METs level attributable solely to his cardiac condition. Accordingly, entitlement to an increased disability rating for ischemic heart disease is remanded. The Veteran is advised to cooperate in the development of his claim, and that it is his responsibility to report for any scheduled examination and to behave in a cooperative manner. He is further advised that the failure to cooperate during a VA examination without good cause may result in denial of his claim. 38 C.F.R. §§ 3.1588, 3.655. The matter is REMANDED for the following action: 1. Ask the Veteran to submit, or to identify and authorize VA to obtain, any private medical records related to treatment he has received related to his ischemic heart disease. Request any records properly identified. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records himself. 2. After associating any additional records with the claims file, the AOJ should schedule the Veteran for a VA examination with a VA clinician with the appropriate expertise to determine the current nature and severity of the Veteran’s service-connected ischemic heart disease. The claims file and this REMAND should be made available to and reviewed by the examiner. All indicated diagnostic tests and studies should be performed. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) The examiner is requested to provide diagnostic METs scores. If these tests cannot or should not be undertaken, the examiner should provide an explanation for such finding, as well as an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. (b.) Even if the Veteran does not appear or fully cooperate with the examination and any required testing, the examiner should provide an opinion as to the estimated METs level due solely to the cardiac condition. If needed, this opinion should be based on a review of relevant medical evidence of record. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel