Citation Nr: 1807607 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-25 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than March 18, 2013, for the granting of a 30 percent disability evaluation for tinea versicolor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference; a transcript of that hearing is of record. Additional evidence consisting of a written statement from the Veteran and VA medical records was added to the claims file after the last statement of the case in June 2014. A wavier is not needed as the written statement is essentially duplicative of evidence previously of record and the VA treatment records are not relevant. See 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. A claim for an increased rating was received on October 17, 2012. 2. An increase in the Veteran's tinea versicolor (20 to 40 percent of the body affected) became factually ascertainable on November 25, 2013. CONCLUSION OF LAW The criteria for an effective date prior to March 18, 2013, for the award of a 30 percent schedular disability rating for service-connected tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.400, 4.118 (Diagnostic Code 7806) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). A December 2012 letter satisfied the duty to notify provisions for the claim on increased rating for tinea versicolor. A June 2014 statement of the case provided notice on the "downstream" issue of entitlement to an earlier effective date, and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran and his representative have had ample opportunity to respond and supplement the record. Neither has alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran has been provided with VA examinations in January 2013 and November 2013. The examinations, with the other evidence of record, are sufficient evidence for deciding the claim. Furthermore, additional development is not necessary as the effective date issues turn on when a claim was filed and whether there were pending claims. Thus, VA's duty to assist has been met. II. Effective Date Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Veteran was awarded service connection for tinea versicolor in a December 1970 rating decision and assigned a noncompensable rating. A March 2005 rating decision continued the noncompensable rating. The Veteran was informed of that decision and he did not file a notice of disagreement. He filed for an increased evaluation on October 17, 2012. A February 2013 rating decision increased the evaluation to 10 percent, effective from October 17, 2012. In a statement received March 18, 2013, the Veteran disagreed with the 10 percent rating. A December 2013 rating decision increased the rating to 30 percent, effective from March 18, 2013. The Veteran contends that the 30 percent rating should have been made effective earlier that March 2013. The Board notes that while a subsequent, July 2016, rating decision increased the rating for tinea versicolor to 60 percent, effective from April 12, 2016, the current appeal is limited to the effective date of the 30 percent rating. The Veteran's tinea versicolor is rated in accordance with the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent rating is warranted for 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. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are 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 previous 12-month period. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs has been required during the past 12-month period. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase 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 the claim. 38 C.F.R. § 3.400(o)(1), (2). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). For VA compensation purposes, a "claim" is 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). Although the regulations have since been amended to provide for standardized claims forms, this was after the time period in question for this case. An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, 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). In addition, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability in treatment records. See Brannon v. West, 12 Vet. App. 32, 35 (1998). An April 2011 VA dermatology treatment record noted that the Veteran was requesting intramuscular steroid injection for his skin disability. The treating physician stated that this treatment was not indicated. The Veteran reported that he had been treated with many topicals including Selsun. "The only thing that works is an injection he used to get from a private MD once or twice a year. Now coming to VA for injection. Rash worse with heat and sweating, very itchy, confined to upper body only." The Veteran "denies any rash today but would like injection before summer months." On examination, there were no concerning lesions on the face. On the chest, tattoos were present, but no hypopigmented areas or rash were visualized. On the back, there were no concerning lesions. The assessment was "no rash/no evidence of tinea versicolor or other skin lesions at this time." On VA examination conducted in January 2013, the Veteran reported that he developed tinea versicolor in the service, and that it had presented as hypopigmented, itchy spots on the arms, chest, and back. He reported his treatment in service was Selsun Blue, which was not effective. After the service, he tried oral nizoral, Claritin, and kenalog, with variable effect. He reported that his tinea versicolor was worse now; he thought the spots had gotten larger and more numerous. He reported that he had used no medication in the last 12 months. He stated that he did not use anything because he hadn't found past treatments helpful. On examination, there were scattered hypopigmented spots on the upper and lower back, up to three centimeters in size; hypopigmented spots up to one centimeter on the bilateral mid arms near antecubital fossae; and no lesions of tinea versicolor on the chest at the current time. The examiner stated that the total body surface area of tinea versicolor was 10 percent, and the exposed body surface area was zero percent. On VA examination in November 2013, the examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The examiner noted hypopigmented tinea spots on the arms and stomach. The examiner stated that the total body surface area of tinea versicolor was 20 to 40 percent, and the exposed body surface area was zero percent. The RO assigned an effective date of March 18, 2013 for the award of a 30 percent rating for tinea versicolor, having determined that was the date of the Veteran's claim for an increased rating. In fact, the March 2013 statement from the Veteran was a notice of disagreement with the rating assigned in the February 2013 rating decision. The actual date of claim was October 17, 2012. The effective date at question here turns on the earliest date as of which an increase to the 30 percent level is factually ascertainable. The November 2013 VA examination was the first objective evidence of tinea versicolor affecting more than 20 percent of the Veteran's entire body. Thus, that is the date on which it was factually ascertainable that the 30 percent criteria were met. That the Veteran met the criteria for the next higher rating provided by law for his disability had not been previously shown. The RO awarded the increase back to the date of the March 2013 correspondence. As noted above, the actual date of claim was October 17, 2012. Where, as here, the increase occurred after the date of the claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(1), (2). The currently assigned date is already prior to the date of increase, which would be the date of the November 2013 VA examination. There is no evidentiary basis for making the increased award, 30 percent, effective prior to March 18, 2013. As such, the preponderance of the evidence is against the claim for an earlier effective date for the 30 percent rating for tinea versicolor, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An effective date earlier than March 18, 2013, for the granting of a 30 percent disability evaluation for tinea versicolor is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs