Citation Nr: 21011582 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 03-22 403 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 60 percent for tinea versicolor from May 16, 2018, on an extraschedular basis is denied. Entitlement to a rating in excess of 30 percent for tinea versicolor from August 25, 2003, on an extraschedular basis is denied. FINDINGS OF FACT 1. From August 25, 2003, the Veteran’s tinea versicolor does not result in marked interference with employment or frequent periods of hospitalization. 2. From May 16, 2018, the Veteran’s tinea versicolor does not result in marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 3. From August 25, 2003, the criteria for a rating in excess of 30 percent for tinea versicolor on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. 4. From May 16, 2018, the criteria for a rating in excess of 60 percent for tinea versicolor on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to August 2003. This case has an extensive procedural history. In pertinent part, in a July 2012 decision, the Board denied entitlement to a schedular rating in excess of 30 percent from August 25, 2003, for tinea versicolor. This matter is no longer for appellate consideration. 38 C.F.R. § 20.1100(a) (a Board decision is final on the date stamped on the face of the decision with exceptions not applicable here). In January 2018, the Board remanded entitlement to a rating in excess of 30 percent for tinea versicolor from August 25, 2003, on an extraschedular basis, noting the Veteran’s assertions that his symptoms are more severely disabling and warrant higher ratings on an extraschedular basis. In June 2020, the Board remanded entitlement to a rating in excess of 30 percent for tinea versicolor from August 25, 2003, and entitlement to a rating in excess of 60 percent for tinea versicolor from May 16, 2018, for extraschedular ratings and referred the issues to VA’s Director of Compensation Service for extraschedular consideration. On January 5, 2021, the Board sought clarification to a November 2020 letter from an attorney’s firm indicating that the firm did not represent the Veteran regarding the claims on appeal, as the 21-22a was limited to the issue of, “A rating greater than 10 percent for tinea versicolor, to include on an extraschedular basis from August 30, 2002 to August 25, 2003, which was previously denied in a June 2020 Board decision. This letter conflicted with an August 2020 VA Form 21-22a October 2020 attorney letter issued by the firm. On January 26, 2016, the attorney’s firm indicated that the October 2020 attorney letter included this issue in error, as their office withdrew representation on this issue in June 2015, which is consistent with documents in the claims file. Therefore the Veteran is currently considered unrepresented for the purposes of this appeal. Extraschedular Consideration 1. An increased evaluation on an extraschedular basis for tinea versicolor in excess of 30 percent from August 25, 2003 and in excess of 60 percent from May 16, 2018, on an extraschedular basis. An extraschedular disability rating is warranted when there is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. (1) The Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. (2) If the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. (3) If the disability picture is exceptional, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. As discussed in more detail below, in June 2020, the Board found the evidence met the requirements for a remand to the agency of original jurisdiction for referral to the Director of Compensation for consideration of increased disability ratings on an extraschedular basis. Specifically, the Board referenced an April 2012 statement to Veteran reported absences from work due to his tinea versicolor disability and the Veteran’s statement during his May 2018 VA examination that his employment as a corrections officer required prolonged sun exposure that exacerbated his disability. In an October 2020 Advisory Opinion, the Director denied the claim for an increased evaluation on an extra-schedular basis for tinea versicolor in excess of 30 percent from August 25, 2003, and in excess of 60 percent from May 16, 2018, on an extra-schedular basis. The Director found that while the medical evidence of record shows ongoing treatment for tinea versicolor, the objective evidence of record fails to corroborate incapacitating episodes creating marked interference with employment. The Veteran continues to work as a correctional officer without interference from his condition, and provisions in the medical records are consistent with the provisions of the rating schedule. The Director noted that the evidence does not reveal frequent hospitalizations due specifically to tinea versicolor or treatment for versicolor. The Director further noted that the evidence of record does not show that the currently assigned, or available, schedular evaluations for tinea versicolor are inadequate due to exceptional or unusual circumstances. There is no restriction on the Board’s ability to review the adjudication of an extraschedular rating once the Director determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). The Board reviews the entirety of the Director’s decision de novo and is thus authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015). Moreover, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Id. at 443, n. 7 (2015). For the following reasons, the Board finds that an extraschedular evaluation for tinea versicolor is not warranted at any time throughout the appeal period. In this case, although the Veteran has complained of exacerbation of his tinea versicolor due to the required prolonged sun exposure as a correctional officer, these symptoms do not cause marked interference with employment or frequent hospitalization. August 2003, May 2018, and December 2019 VA examination reports shows the Veteran reported symptoms of itchy, dry, flaky skin, and pruritic rash. A November 2019 VA clinical record shows the Veteran reported tinea versicolor exacerbated by sweating and occurring throughout the year. Although there is some evidence of interference with employment, the Veteran’s tinea versicolor has not caused marked interference with employment or frequent hospitalization, meaning interference or hospitalization beyond that contemplated by the schedular 30 and 60 percent ratings that have been assigned. See 38 C.F.R. § 4.1 (“Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability”). See also Todd v. McDonald, 27 Vet. App. 79, 85 (2014) (noting the Board’s consideration of marked interference with employment or frequent periods of hospitalization beyond that contemplated in the assigned 80 percent schedular rating). On the August 2003 VA examination report, no functional impact due to tinea versicolor was noted. In April 2012, the Veteran submitted notes indicating that he missed four days between September 1, 2011 and March 20, 2012, due to his tinea versicolor condition. A May 2018 VA examination report shows the Veteran had no debilitating and non-debilitating episodes in the past 12 months. The examiner indicated that the Veteran’s tinea versicolor impacts his ability to work, as he works as a correction officer and his skin rash get worse when exposed to the sun on the job and he often has to scratch. The December 2019 VA examiner indicated that the Veteran’s tinea versicolor did not impact his ability to work. A September 2020 VA clinical record shows the Veteran continues to work as a corrections officer. Thus, the Veteran’s tinea versicolor has not caused marked interference with employment, i.e., beyond that envisioned by the assigned 30 percent rating from August 25, 2003, and 60 percent rating from May 16, 2018. Moreover, there is no evidence of hospitalization. The Board notes that in its June 2020 remand, it found that the record contained “evidence that during both periods on appeal, the Veteran’s disability may have been so exceptional in nature as to not be fully contemplated by the rating schedule, to include marked interference with employment.” BVA Remand (June 15, 2020) (emphasis added), at 10 (citing April 2012 lay statement recording absences from work due to disability, May 2018 VA examination noting employment as a corrections officer requiring prolonged sun exposure that exacerbated his disability, and the representative’s July 2018 brief). “The initial extraschedular referral decision under § 3.321(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that ‘application of the regular schedular standards” is impractical because the disability is “exceptional or unusual... with such related factors as marked interference with employment or frequent periods of hospitalization.’” Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020) (quoting 38 C.F.R. § 3.321(b)). The Board’s use of the term “may,” reflects that it was making a preliminary determination consistent with the reasonability possibility standard. Moreover, “in the extraschedular rating context, the Board’s reasons-or-bases requirement obligates it to ‘explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage.’” Id. at 358 (2020) (quoting Ray v. Wilkie, 31 Vet. App. 58, 67 (2019). The Board’s finding above reflects consideration of the relatively low number of four missed days of work, the additional sun exposure, and other factors, and concludes that, in light of the other evidence cited reflecting little or no impact on work, the symptoms of the Veteran’s tinea versicolor do not cause the Veteran to miss work more than would be contemplated by the staged 30 and 60 percent ratings. For the foregoing reasons, the preponderance of the evidence reflects that entitlement to an increased evaluation on an extraschedular basis for tinea versicolor in excess of 30 percent from August 25, 2003 or in excess of 60 percent from May 16, 2018, is not warranted. Thus, the benefit of the doubt doctrine is not for application and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3 Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.