Citation Nr: 1815485 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-24 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable rating for bilateral tinea pedis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from January 22, 1976 to February 11, 1976 and from June 1980 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and August 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was scheduled for an October 2017 videoconference hearing. However, the Veteran did not appear for the hearing and to date the Veteran has not requested that the hearing be rescheduled. As such, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704(d) (2017). Additional evidence, namely VA treatment records dated in August 2017, was added to the record after the issuance of the August 2017 supplemental statement of the case. However, the newly associated evidence is not relevant to the claim for a higher initial rating for bilateral tinea pedis. See 38 C.F.R. § 20.1304(c) (2017). FINDING OF FACT The Veteran's bilateral tinea pedis affects less than five percent of his entire body; zero percent of exposed areas; and, requires topical medication, rather than a corticosteroid or other immunosuppressive drug, for treatment. CONCLUSION OF LAW The criteria for an initial compensable rating for tinea pedis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Codes 7806, 7813 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In a January 2018 Informal Hearing Presentation, the Veteran's representative argued that the March 2017 VA examiner was not shown to have any particular expertise, experience, training or competence in commenting on dermatologic disorders. The Veteran's representative did not explain why a primary care physician was unable to determine whether the Veteran had symptoms such as scarring or neoplasms or the amount of exposed body area and total body that was impacted by his tinea pedis. The Board notes that the March 2017 VA examiner was a primary care physician. A primary care physician is a competent medical professional capable of making a determination as to the severity of the Veteran's current disability. The United States Court of Appeals for the Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion. Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Additionally, the Board may assume a VA medical examiner is competent. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (stating that VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (finding that an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). Here, no probative evidence suggests that the VA examining primary care physician was not competent to provide the requested opinion. As the May 2017 opinion is thorough, supported by an adequate rationale, based on a review of the claims folder, and largely supported by the evidence of record, there is no reason to find the opinion inadequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion regarding the issue decided herein has been met. II. Initial Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (addressing staged ratings for increased rating claims. Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinea pedis is rated under Diagnostic Code 7813. That code directs that the disability should be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800; as scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805); or as dermatitis under Diagnostic Code 7806; depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2017). The Veteran's tinea pedis has correctly been rated as dermatitis under Diagnostic Code 7806. Under that diagnostic code, a non-compensable rating is warranted when less than five percent of the entire body or less than five percent of exposed areas are affected; and, no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when at least five percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, 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 rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is warranted when more than 40 percent of the entire body or 40 percent of exposed areas are affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Veteran has asserted that he should have a higher, compensable rating for tinea pedis. In a July 2011 statement, the Veteran reported that he had tried several medications to help his feet condition but that they did not work. In a May 2012 skin diseases VA examination, the Veteran was diagnosed with tinea pedis. Upon examination, there were no benign or malignant skin neoplasms or any systemic manifestations due to any skin diseases. The Veteran used topical medications; no systemic therapy was noted. Less than five percent of the total body area was affected and there was no exposed area. In a September 2012 statement, the Veteran described how athlete's foot caused a breakdown in his skin. In a December 2012 VA treatment note, the Veteran requested a clothing allowance as he continuously had to apply Clotrimazole cream to his feet, legs and groin. Upon examination, the Veteran's feet were noted to be darkened and more discolored than the top of his feet. The physician said that it looked to have been healed over and over again. The Veteran reported continued flare up with his feet and groin continuously itchy, dry and very flaky. In a September 2013 VA treatment note, the Veteran was prescribed additional topical treatment creams for his feet and was told to keep his feet dry. In a February 2014 VA treatment note, the Veteran complained of a rash that was really bothering him. It was diffuse, bilateral and itching, and worse in his feet. The physician noted that the Veteran described his feet as "rotting off," but on physical examination, the physician found that the Veteran's feet appeared benign. There was no obvious dermatologic abnormality of his feet. There were no rashes or lesions. He used a topical cream for his feet. In a July 2014 skin diseases VA examination, the Veteran stated that he continued to have tinea pedis with painful cracking of the skin between all toes currently present. Upon examination, the Veteran's skin condition did not cause scarring or disfigurement of the head, face or neck, there were no benign or malignant skin neoplasms, and there were no systemic manifestations due to any skin diseases. The Veteran used a topical cream medication; no systemic therapy was noted. Less than five percent of the total body area was covered and there was no exposed area. In a March 2017 skin diseases VA examination, the examiner found that the Veteran's skin condition did not cause scarring or disfigurement of the head, face or neck, there were no benign or malignant skin neoplasms, and there were no systemic manifestations due to any skin diseases. No systemic therapy was noted. Less than five percent of the total body area was covered and there was no exposed area. The examiner commented that the Veteran had an intertriginous rash in between the toes of both feet. His toenails were mycotic with hyperpigmentation on lateral borders of both feet. There was drying, peeling and excoriations on both heels. Plantar surface of both feet was consistent with tinea pedis. The evidence of record does not support granting a compensable rating for tinea pedis. There is no evidence of record indicating that at least five percent of the Veteran's body, or at least five percent of exposed areas were affected by tinea pedis. In fact, the examiners specifically noted that less than five percent of the Veteran's entire body was affected by tinea pedis and zero percent of exposed areas were affected. Further, while the Veteran was noted to use a topical cream for treatment of his tinea pedis during the period on appeal, he did not take systemic therapy such as corticosteroids or immunosuppressive drugs for treatment of tinea pedis. The Board notes the December 2012 VA treatment note that showed some skin darkening and the May 2017 VA examiner's report of hyperpigmentation; however, there is no evidence to suggest that this exceeded six square inches to warrant a separate compensable rating under Diagnostic Code 7800. 38 C.F.R. § 4.118. In addition, there is no further evidence to suggest that a separate compensable rating is warranted under Diagnostic Codes 7801 to 7805 for scars. The Board acknowledges the Veteran's report of tinea pedis symptoms. The Board finds the Veteran competent to present information concerning his symptoms, and credible, but, as a lay person without medical training, he is not competent to provide a medical diagnosis in a matter such as this. The examiners considered the Veteran's reported symptoms in making findings, and the Board has considered that evidence in determining the appropriate rating. The Board finds that a compensable rating is not warranted in this case. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813. A higher rating of 10, 30 or 60 percent is not appropriate in this case at any point during the appeal period. The record does not reflect a time when the Veteran's rash covered at least five percent of his entire body, or at least five percent of exposed areas affected; or, a time when the Veteran required use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Therefore, a compensable rating is not warranted for this Veteran's bilateral tinea pedis at any point during the appeal period. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813. The Board has considered whether further staged ratings under Fenderson, supra, are appropriate for the Veteran's service connected bilateral tinea pedis; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. In assessing the severity of the disabilities under consideration, the Board has considered the Veteran's assertions regarding his symptoms ,which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of an initial rating for tinea pedis pursuant to any applicable criteria at any point pertinent to this appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a compensable rating for bilateral tinea pedis, that doctrine is not applicable in this instance. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. ORDER Entitlement to an initial compensable rating for bilateral tinea pedis is denied. ____________________________________________ KRISTY L. ZADORA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs