Citation Nr: 18159689 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-02 424 DATE: December 20, 2018 ORDER Entitlement to an effective date of September 9, 2013 for the grant of a 60 percent disability rating for service-connected tinea corpora, is granted. FINDINGS OF FACT 1. A December 2012 rating decision granted service connection for tinea corpora and a February 2013 rating decision continued the 10 percent rating for tinea corpora, effective June 1, 2011. 2. The Veteran did not appeal or submit new and material evidence within a year of the mailing date, and the Veteran has not asserted that the effective date assigned in the February 2013 rating decision was clearly and unmistakably erroneous. As such, the February 2013 rating decision became final. 3. VA received an increased rating claim for a skin condition on September 9, 2014. Prior to September 9, 2014, there was no pending informal or formal skin condition increased rating claim that remained unadjudicated, and no appeal or new and material evidence was submitted during the applicable appellate period. 4. Affording the Veteran the benefit of reasonable doubt, beginning September 9, 2013, the Veteran met the criteria for the 60 percent disability rating for his tinea corpora. CONCLUSION OF LAW The criteria for an effective date of September 9, 2013, for the grant of a 60 percent rating for service-connected tinea corpora have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Codes 7820-7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to September 1994. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. A rating decision becomes final and binding if the veteran does not timely perfect an appeal of the decision, or unless new and material evidence is received prior to the expiration of the appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156, 20.200, 20.302, 20.1103. Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3.105(a), 20.1400. In order for a veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). In pertinent part, prior to March 24, 2015, any communication or action indicating an intent to apply for one or more VA benefits could be considered an informal claim. Under 38 C.F.R. § 3.155(a), the veteran or a representative of the veteran could file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim had not been filed, an application form would be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it would be considered filed as of the date of receipt of the informal claim. An “application” is used synonymously with “claim” and defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Prior to March 24, 2015, under former 38 C.F.R. § 3.157, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. Tinea corpora The AOJ granted service connection for tinea corpora in a December 2012 rating decision. Within one year, new and material evidence, including a February 2013 VA skin examination report was associated with the claims file that tolled the finality of the December 2012 rating decision. Thereafter, the AOJ issued a February 2013 rating decision, which continued the 10 percent evaluation for service-connected tinea corpora, effective June 1, 2011. The Veteran did not appeal, and did not submit new and material evidence within one year of the February 2013 rating decision notice date. Hence, the February 2013 rating decision became final. Importantly, that rating decision continued the 10 percent disability rating, effective June 1, 2011. Following the final February 2013 rating decision, the first communication from the Veteran seeking an increased disability rating for skin condition was in September 2014. On September 9, 2014, VA received the Veteran’s fully developed claim, VA Form 21-526EZ, seeking an increased disability rating for skin condition. In a March 2015 rating decision, the AOJ granted entitlement to a 60 percent disability rating for the Veteran’s tinea corpora, effective September 9, 2014. The Veteran contends he is entitled to an earlier effective date of June 1, 2011, the date the Veteran was service-connected for tinea corpora, for the grant of the 60 percent disability rating. He contends that his tinea corpora was the same then as when the increase was granted. See December 2016 VA Form 9. First, the Board finds that entitlement to an effective date of June 1, 2011, for the grant of the 60 percent disability rating for tinea corpora cannot be established. As discussed above, the February 2013 rating decision became final. Neither the Veteran nor his representative has alleged CUE in the February 2013 rating decision. The Board acknowledges the Veteran’s contention that he was not given thorough VA skin examinations in November 2012 and February 2013; however, the Board notes that CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). To date, CUE has not been asserted, and is not presently before the Board on appeal. Accordingly, the Board finds an effective date for the grant of a 60 percent disability rating for tinea corpora cannot be established prior to the final February 2013 rating decision. See 38 C.F.R. § 3.400. Next, the Board finds the Veteran did not file a claim, either formal or informal, for an increased disability rating prior to the September 9, 2014, claim. Following the unappealed February 2013 rating decision, the evidence of record does not indicate that either the Veteran or his representative indicated an intent to apply for an increased disability rating, or indicating the Veteran’s priapism had worsened, prior to the communication received on September 9, 2014. Further, the Board finds that an informal claim was not received in accordance with 38 C.F.R. § 3.157. The Veteran’s VA treatment records do not indicate that he received VA treatment for his tinea corpora following the unappealed February 2013 rating decision but before September 2014. Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the 60 percent disability rating for his tinea corpora. See 38 C.F.R. § 3.400(o)(1). The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable. See Servello, 3 Vet. App. 196; 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2). The VA rating schedule does not have a Diagnostic Code specific to the Veteran’s disability. The Veteran’s tinea corpora is rated under Diagnostic Codes 7820-7806. Beginning September 9, 2014, a 60 percent rating was assigned under Diagnostic Code 7820-7806. Diagnostic Code 7820 instructs the rater to evaluate as disfigurement of the head, face, or neck (DC 7800); scars (DCs 7801, 7802, 7804 and 7805); or dermatitis (DC 7806), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Under Diagnostic Code 7806, a 10 percent rating is assigned where there is involvement 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; 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent rating requires involvement of 20 to 40 percent of the entire body or 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 maximum rating of 60 percent requires 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. Affording the Veteran the benefit of reasonable doubt, the Board finds it is factually ascertainable that prior to the Veteran’s September 9, 2014, claim, that his tinea corpora had increased in severity to meet the criteria for a 60 percent disability rating. The medical evidence in the file pertaining to tinea corpora, for the period from September 9, 2013, to September 9, 2014, is sparse and the Board acknowledges the March 2015 VA examination report, which supported the grant of the 60 percent increase for tinea corpora, noted that the Veteran had been diagnosed with tinea corpora since 1993. Further, he had been treated with a variety of antifungal medications for rashes throughout the appeal period. The Board notes that review of the record during the relevant period showed that skin rashes were noted prior to September 9, 2014, and the Veteran was using prescribed antifungal cream, Clotrimazole, daily. See September 3, 2014 VA treatment records. However, the size(s) and location(s) of the skin rashes and affected area(s) was not specified. In light of the VA examiner’s indication that the Veteran’s tinea corpora rashes have persisted throughout the relevant period and have consistently required the use of antifungal medications, the Board affords the Veteran the benefit of reasonable doubt and finds the severity has been consistent throughout the relevant period. Thus, the Board finds that an earlier effective date of September 9, 2013, is warranted for the 60 percent rating. Accordingly, affording the Veteran the benefit reasonable doubt, the Board concludes that it is factually ascertainable that the Veteran is entitled to an effective date of September 9, 2013, for the grant of the 60 percent disability rating for tinea corpora. 38 C.F.R. § 3.400(o). Therefore, the Board finds that a September 9, 2013, effective date for tinea corpora, but not earlier, is warranted and the claim is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel