Citation Nr: 21012529 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-08 614 DATE: March 4, 2021 REMANDED Entitlement to a compensable disability rating from March 1, 2008 to July 2, 2010 and to a disability rating in excess of 30 percent thereafter for tinea versicolor of the face, back, head, and both flanks with tinea cruris of the groin is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1984 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Appeals Period The Veteran initially filed a claim for entitlement to service connection for tinea versicolor of the face, back, head, and both flanks on March 1, 2008. Service connection was granted in a November 2008 rating decision at a noncompensable rating, effective March 1, 2008. The Veteran filed a claim for a higher rating for his service-connected skin disability in July 2009. The RO continued the noncompensable rating in a December 2009 rating decision. In June 2010, the Veteran filed for an increased rating for his skin disability. In a December 2010 rating decision, the noncompensable rating was continued. The Board finds that the November 2008, December 2009, and December 2010 rating decisions did not become final. The Veteran did not file notices of disagreement with these decisions. However, in the year following each of these decisions, new evidence was added to the record including VA and private medical records and examination reports. No subsequent rating decision has made a determination with regard to whether this evidence was new and material. As such, these decisions did not become final. This evidence was new and pertained to severity of the Veteran’s service-connected disability. As a result, the current appeals period therefore begins March 1, 2008. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In June 2011, the Veteran again filed for a higher rating. A March 2013 rating decision continued the noncompensable rating. The Veteran appealed this rating and perfected his appeal to the Board. In November 2018, the Board remanded the issue for additional development. In a July 2020 rating decision, the RO increased the Veteran’s disability rating to 30 percent for his service-connected skin disability, effective July 2, 2010, the date VA medical records show a prescription for fluconazole for treatment of tinea versicolor for 6 weeks. The Veteran has not expressed satisfaction with the higher rating. This issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a Veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Legacy Appeal The Veteran’s initial claim was decided, appealed, and remanded by the Board under the legacy system. A Veteran can opt into the Appeals Modernization Act (AMA), by filing a VA form 10182, notice of disagreement with an initial decision under 38 C.F.R. § 3.2400(a)(1). In September 2020 the Veteran filed a Form 10182, notice of disagreement, in response to the July 2020 rating decision increasing his rating for his skin disability to 30 percent. However, as the July 2020 rating decision was a partial increase for the increased rating claim for tinea versicolor, issued during the pendency of the Veteran’s legacy appeal, it is not an initial decision under 38 C.F.R. § 3.2400(a)(1) for which the AMA would apply. Accordingly, the Veteran’s September 2020 VA Form 10182 is not a valid appeal of the issue of entitlement to an increased rating for the Veteran’s service-connected skin disability. As such, the appeal will remain in the legacy system. Remand The Veteran contends that a higher rating is warranted for his service-connected skin disease. He has asserted that his service-connected rash covers more than 40 percent of his body and therefore meets the criteria for a higher rating. He was provided with a VA examination in November 2020. The examiner found that the Veteran’s skin disability covered more than 40 percent of his total body area and his total exposed body area. However, the examiner indicated that the Veteran was diagnosed with found that the Veteran was diagnosed with erythema multiforme. However, the Veteran is service connected for tinea versicolor of the face, back, head, and both flanks with tinea cruris of the groin. On remand, the Board finds that clarification is needed as to the amount of the Veteran’s exposed and total skin is affected by his service-connected disability. In January 2020, the Veteran provided current photographs of his skin disability. The examiner should review these photographs to provide an opinion as to the extent of skin involvement attributable to his service-connected tinea versicolor of the face, back, head, and both flanks with tinea cruris of the groin. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea versicolor of the face, back, head, and both flanks with tinea cruris of the groin. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should review the examination report from the November 2020 and note whether the Veteran has a diagnosis of a skin disability aside from tinea versicolor of the face, back, head, and both flanks with tinea cruris of the groin. The examiner should clearly determine the percentage of total body area or his total exposed body area affected by his service-connected skin disability as opposed to any non-service-connected skin disability. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.