Veteranclaims’s Blog

January 1, 2016

Single Judge Application; Hudgens v. Gibson, 26 Vet.App. 558, 563 (2014); Rating Not Listed Conditions

Filed under: Uncategorized — veteranclaims @ 6:27 pm

Excerpt from decision below:

“For conditions that are not specifically listed in the rating schedule, VA regulations provide
that those conditions may be evaluated by analogy under a DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2015); see Copeland v. McDonald, 27 Vet.App. 333, 337 (2015);
Hudgens v. Gibson, 26 Vet.App. 558, 563 (2014).”

==============

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-4076
JOSEPH BELL, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

BARTLEY, Judge: Self-represented veteran Joseph Bell appeals a September 12, 2014,
Board of Veterans’ Appeals (Board) decision (1) restoring a 10% disability evaluation for serviceconnected tinea versicolor1 prior to March 1, 2010; and (2) denying an evaluation in excess of 10% for that condition for the entire period on appeal. Record (R.) at 3-11. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will affirm the September 2014 Board decision.
I. FACTS
Mr. Bell served on active duty in the U.S. Army from August 1983 to June 2008, including
in the Persian Gulf. R. at 1468. He was diagnosed with tinea versicolor during service (R. at 223;
see R. at 1352), and was afforded a pre-separation VA medical examination in May 2008 (R. at
1886-88). The examiner noted annular areas of hyperpigmentation with scaling, “most similar to
1″Tinea versicolor” is a common fungal infection that interferes with the normal pigmentation of the skin,
resulting in small, discolored patches. Tinea Versicolor, MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/
tinea-versicolor/ basics/definition/CON-20024674 (last visited Aug. 10, 2015).
that of tinea versicolor,” that covered approximately 7% of Mr. Bell’s total body surface and less than
5% of his exposed body surface. R. at 1887; see R. at 491 (post-service medical record reflecting
complaints of tinea corporis and 2 dermatitis in May 2008). Accordingly, in August 2008, a VA
regional office (RO) granted service connection for tinea versicolor and awarded a 10% evaluation
under 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7813 (Dermatophytosis) and 7816 (Psoriasis),
effective July 1, 2008, the day after separation from service. R. at 1871-78.
Less than one year later, in June 2009, Mr. Bell submitted a statement in support of claim
(SSC) requesting, inter alia, that the RO “re-evaluate” several service-connected disabilities,
including his “worsened” tinea versicolor. R. at 2281. Medical records from that period reflect
complaints of and treatment for rash, dermatitis, tinea corporis, and confluent and reticulate
papillomatosis.3 R. at 1283, 1352-53, 1357. A September 2009 VA examination revealed small
faint hyperpigmentation of the upper trunk and neck but no findings typical of tinea versicolor. R.
at 1617. Based on those findings, in February 2010 the RO reduced Mr. Bell’s tinea versicolor
evaluation to noncompensable, effective September 16, 2009, the date of the VA examination. R.
at 2082-94.
Although somewhat unclear from the record on appeal, it appears that Mr. Bell timely
appealed the reduction. See R. at 3 (September 2014 Board decision noting that the appeal was taken
from a February 2010 rating decision); but see R. at 2049 (December 2011 RO decision noting that
the veteran had filed claims for increased evaluations in March 2010 and October 2011). In
December 2011, the RO determined that it had committed clear and unmistakable error (CUE) in
assigning the September 16, 2009, effective date for the reduction of the veteran’s tinea versicolor
evaluation and revised the February 2010 rating decision to make the reduction effective March 1,
2010, the first day of the month after the date of the reduced evaluation decision. R. at 2043-56.
2″Tinea corporis,” also called ringworm, is a skin infection caused by mold-like fungi called dermatophytes.
See Tinea Corporis, NAT’L INSTS. OF HEALTH, MEDLINE PLUS MEDICAL ENCYCLOPEDIA, http://www.nlm.nih.gov/
medlineplus/ency/article/000877.htm (last visited Aug. 10, 2015).
3″Confluent and reticulate papillomatosis” is “a progressive, pruritic skin condition [that] begins on the chest
and back as keratotic, pigmented papules that increase in size and spread outward over the body.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 1372 (32 ed. 2012).
2
Later in December 2011, Mr. Bell underwent another VA examination and reported taking
two minocycline 4 capsules per day as needed for his skin condition, which he had done twice in the
past six months, including for a single two-week period. R. at 1252-53. A physical examination
revealed a skin infection on his chest below the neck affecting less than 5% of total body surface and
no exposed skin. R. at 1256. The examiner described the affected area as a 5 cm by 9 cm patch of
skin that was slightly lighter in color than the surrounding area, with no scaling or excoriation. Id.
The examiner also indicated that the veteran did not have scarring or disfigurement of the head, face,
or neck. R. at 1252.
In September 2014, the Board issued the decision currently on appeal. R. at 3-11. The Board
acknowledged that tinea versicolor is not expressly listed in the VA rating schedule and noted that
Mr. Bell’s service-connected skin condition has been evaluated by analogy under DC 7816. R. at 7,
9. The Board explained that evaluation under DC 7816 remained “most appropriate[]” because the
veteran’s skin condition did not involve the head, face, or neck; had not resulted in scars; and
required treatment with intermittent systemic medication–i.e., minocycline–since service, albeit not
for a total duration of 6 weeks or more during any 12-month period. R. at 9. The Board therefore
concluded that, contrary to the RO’s December 2011 decision, Mr. Bell was entitled to a 10% tinea
versicolor evaluation under DC 7816, but no higher, for the entire period on appeal, and awarded a
10% evaluation retroactive to July 1, 2008. Id. This appeal followed.

II. ANALYSIS
A liberal construction of Mr. Bell’s informal brief reveals two broad challenges to the Board
decision on appeal–namely, that the Board clearly erred in denying (1) a tinea versicolor evaluation in excess of 10%, and (2) an effective date earlier than July 1, 2008, for that evaluation. Appellant’s Brief (Br.) at 7-11; see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). The Secretary disputes those contentions and urges the Court to affirm the Board decision. Secretary’s Br. at 4-13. For the reasons that follow, the Court agrees with the Secretary.
4Minocycline is an oral antibiotic used to treat a variety of respiratory, skin, and urinary tract infections. See
Minocycline Oral, NAT’L INSTS. OF HEALTH, MEDLINE PLUS MEDICAL ENCYCLOPEDIA, http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682101.html (last visited Aug. 10, 2015).
3
A. Evaluation in Excess of 10%
1. Other Potentially Applicable DCs
Mr. Bell first argues that the Board erroneously evaluated his service-connected skin
condition under DC 7816 and that, if it had applied either DC 7813 or a DC based on disfigurement,
he would have been entitled to an evaluation greater than 10%. Appellant’s Br. at 2, 9. This
argument is unpersuasive.
For conditions that are not specifically listed in the rating schedule, VA regulations provide
that those conditions may be evaluated by analogy under a DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2015); see Copeland v. McDonald, 27 Vet.App. 333, 337 (2015);
Hudgens v. Gibson, 26 Vet.App. 558, 563 (2014). When deciding whether a disease or injury is “closely related” to the veteran’s condition, VA should consider whether the functions affected, anatomic location, and resultant symptoms of those conditions are analogous. 38 C.F.R. § 4.20; see Lendenmann v. Principi, 3 Vet.App. 345, 351 (1992). “[T]he Court may set aside the [Board’s] selection of a DC in a particular case only if such selection is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” Butts v. Brown, 5 Vet.App. 532, 539 (1993)
(en banc) (quoting 38 U.S.C. § 7261(a)(3)(A)).
The Court is not convinced that the Board’s decision to evaluate Mr. Bell’s service-connected
tinea versicolor under DC 7816 was arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law. That DC applies to psoriasis, which is a skin disease that affects a similar
anatomic location and causes similar symptoms to tinea versicolor. Compare Psoriasis, MAYO
CLINIC, http://www.mayoclinic.org/diseases-conditions/psoriasis/basics/symptoms/con-20030838
(last visited Aug. 10, 2015), with Tinea Versicolor, MAYO CLINIC, http://www.mayoclinic.org/
diseases-conditions/tinea-versicolor/basics/definition/ CON-20024674 (last visited Aug. 10, 2015).
In fact, the evaluation criteria for DC 7816 mirror the disabling characteristics of Mr. Bell’s serviceconnected
tinea versicolor, namely hyperpigmentation of the skin and use of intermittent systemic
therapy. See 38 C.F.R. § 4.118, DC 7816 (2015) (differentiating between disability levels based on
percentage of total body affected, percentage of exposed areas affected, or frequency of medication
required). As such, the Board’s selection of DC 7816 was not irrational and, although Mr. Bell
believes that another DC would be more appropriate, he has failed to carry his burden of
4
demonstrating that the Board acted arbitrarily and capriciously in evaluating his tinea versicolor
under that DC. See Butts, 5 Vet.App. at 539 (citing Environmental Defense Fund v. Costle, 657 F.2d
275, 283 (D.C. Cir. 1981), for the proposition that “the arbitrary and capricious standard is very
narrow, mandating judicial affirmance if a rational basis exists for an agency decision even if the
court may disagree”); see also Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 285 (1974) (explaining that, to withstand arbitrary and capricious review, an agency only “must
articulate a ‘rational connection between the facts found and the choice made'” (quoting Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971))); Hilkert v. West, 12 Vet.App. 145, 151
(1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff’d per curiam,
232 F.3d 908 (Fed. Cir. 2000) (table).
Even assuming, for the sake of argument, that the Board should have evaluated Mr. Bell’s
tinea versicolor under DC 7813 or a DC based on disfigurement as he asserts (Appellant’s Br. at 2,
9), he has failed to show that he would have been entitled to an evaluation under those DCs that
exceeds 10%. DC 7813 does not contain specific evaluation criteria, but instead directs VA to
evaluate dermatophytosis or an analogous skin condition either under DC 7800 for disfigurement
of the head, face, or neck; DCs 7801, 7802, 7804, or 7805 for scars; or DC 7806 for dermatitis,
depending on the predominant disability. 38 C.F.R. § 4.118, DC 7813. However, Mr. Bell has not
shown entitlement to an evaluation in excess of 10% under any of those DCs.
Specifically, with respect to DC 7800, the next higher 30% evaluation is warranted when
there is evidence of “visible or palpable tissue loss and either gross distortion or asymmetry of one
feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles),
cheeks, lips),” or “two or three characteristics of disfigurement.” 38 C.F.R. § 4.118, DC 7800. The
eight characteristics of disfigurement specified in DC 7800 are: (1) a scar 5 or more inches (13 or
more cm) in length; (2) a scar at least one-quarter inch (0.6 cm) wide at widest part; (3) surface
contour of scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin
hypo- or hyper-pigmented in an area exceeding six square inches (39 square cm); (6) skin texture
abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square
cm); (7) underlying soft tissue missing in an area exceeding six square inches (39 square cm); and
5
(8) skin indurated and inflexible in an area exceeding six square inches (39 square cm). 38 C.F.R.
§ 4.118, Note 1 to DC 7800.
As to the first criterion for a 30% evaluation under DC 7800, the evidence of record does not
reflect visible or palpable tissue loss or gross distortion or asymmetry of any facial feature (R. at
1252, 1617, 1887), and the veteran does not assert otherwise. As to the alternative criterion,
although the most recent VA examination showed an area of hyperpigmented skin exceeding 39
square cm (R. at 1256), the evidence of record does not establish any of the other characteristics of
disfigurement necessary for a 30% evaluation. Specifically, there is no evidence that the veteran’s
service-connected skin condition caused scarring of the head, face, or neck5 or that he has an area
of abnormal skin texture, induration and inflexibility, or underlying soft tissue loss exceeding 39
square cm. R. at 1255-58, 1617, 1887; see 38 C.F.R. § 4.118, Note 1 to DC 7800. Therefore, Mr.
Bell has not demonstrated entitlement to an evaluation greater than 10% under DC 7800.
With respect to DCs 7801, 7802, 7804, and 7805, the evidence of record does not reflect
scarring related to tinea versicolor of any body part. R. at 1258, 1617, 1887; see 38 C.F.R. § 4.118,
DCs 7801 (deep and nonlinear scars not of the head, face, or neck), 7802 (superficial and nonlinear
scars not of the head, face, or neck), 7804 (unstable or painful scars), 7805 (other scars). Thus, his
reliance on those DCs is unavailing.
Finally, with respect to DC 7806, the criteria for the next higher 30% evaluation are identical
to the criteria for a 30% evaluation under DC 7816. Compare 38 C.F.R. § 4.118, DC 7806, with
38 C.F.R. § 4.118, DC 7816. Given that the evidence of record does not reflect that the veteran’s
tinea versicolor affects 20% to 40% of the entire body, 20% to 40% of exposed skin, or require
systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of
6 weeks or more, but not constantly, during any 12-month period on appeal, Mr. Bell would not be
entitled to a 30% evaluation under either DC 7806 or DC 7816. R. at 1252-56, 1617, 1887; see
38 C.F.R. § 4.118, DCs 7806, 7816. Accordingly, the Court is not persuaded by the veteran’s
argument that the Board’s selection of DC 7816 over DC 7813 or any of the DCs referenced therein
was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, see Butts,
5Mr. Bell is separately service connected for a left eye corneal scar resulting from eye surgery. See R. at 1875.
6
5 Vet.App. at 539, or otherwise prejudiced his claim, see 38 U.S.C. § 7261(b)(2) (requiring the Court
to “take due account of the rule of prejudicial error”); Lendenmann, 3 Vet.App. at 351 (remanding
where the Board provided inadequate reasons or bases for its selection of an analogous DC).
2. Evaluation Under DC 7816
Mr. Bell next argues that the Board erred in denying him a tinea versicolor evaluation in
excess of 10% under DC 7816 because it failed to properly account for all favorable evidence of
record, including May and June 2009 medical records. Appellant’s Br. at 7-11 (citing R. at 1283,
1352-53); see Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (requiring the Board to analyze the
credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). He points out that those records contain
complaints of and treatment for other skin conditions in addition to tinea versicolor and show that
he has been taking minocycline to treat those conditions. Id.
Contrary to the veteran’s contention, the Board expressly considered the May 2009 medical
records and noted that they showed “treatment for episodic breakouts with [m]inocycline.” R. at 8.
Although the Board did not separately discuss the June 2009 medical records, the Board decision
accurately reflects their contents, in that the Board found that the totality of the evidence indicated
that the veteran “experiences breakouts of his skin disability roughly two times per year, and
responds well to [m]inocycline.” R. at 8. In any event, absent clear evidence to the contrary not
present here, or statutes, regulations, or case law providing otherwise, the Board can be presumed
to have considered the June 2009 medical records in making its decision. See Newhouse v.
Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007).
To the extent that the May and June 2009 records reflect complaints of and treatment for skin
conditions other than tinea versicolor, Mr. Bell has not identified any symptoms of those conditions
that were overlooked by the Board in assigning the 10% evaluation nor has he asserted or
demonstrated that he is entitled to a separate evaluation for any of those conditions. See Hilkert,
12 Vet.App. at 151. Thus, even assuming that the Board erred in failing to discuss those records,
the Court cannot conclude that the veteran was prejudiced by any such error. See 38 U.S.C.
7
§ 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that “the burden of showing
that an error is harmful normally falls upon the party attacking the agency’s determination”).
Mr. Bell additionally argues that the Board’s denial of a higher evaluation for tinea versicolor
under DC 7816 was erroneous because it was based on the Board’s “unsubstantiated medical
conclusion” that his skin condition affected only 7% of his entire body and less than 5% of his
exposed skin and did not require frequent treatment with minocycline. Appellant’s Br. at 10; see
Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that the Board must rely on independent
medical evidence and is prohibited from basing its decision on its own unsubstantiated medical
opinion). Despite the veteran’s assertions, the Board’s findings are not unsubstantiated; they are
expressly based on the December 2011 VA examination. R. at 1252-53, 1256. Given that the Board
repeated the VA examiner’s findings as to the extent of the veteran’s tinea versicolor and the
frequency with which he was required to take minocycline (compare R. at 8-9, with R. at 1252-53,
1256), the Court cannot conclude that the Board improperly exercised its own medical judgment in
evaluating that disability. See Colvin, 1 Vet.App. at 172.
3. Total Evaluation
Lastly, Mr. Bell asserts, without explanation, that the Board should have awarded him a
combined evaluation of 100% effective March 1, 2010. Appellant’s Br. at 12. Although mindful that
Mr. Bell is self-represented, this argument is not sufficiently detailed to facilitate meaningful judicial
review. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not
entertain arguments that are “far too terse to warrant detailed analysis by this Court”); Coker v.
Nicholson, 19 Vet.App. 439, 442 (2006) (requiring that an appellant “plead with some particularity
the allegation of error so that the Court is able to review and assess the validity of the appellant’s
arguments”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008)
(per curiam order). To wit, he has not articulated a factual or legal basis that would arguably
demonstrate entitlement to a 100% combined evaluation (or any other means of obtaining a total
evaluation), and the record before the Board does not appear to have reasonably raised such a theory
of entitlement. See Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs
when it fails to consider an issue reasonably raised by the evidence of record), aff’d sub nom.
8
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Consequently, the Court will not consider this
argument further.
Based on the foregoing, the Court concludes that the Board did not clearly err in denying a
tinea versicolor evaluation in excess of 10%. See Smallwood v. Brown, 10 Vet.App. 93, 97 (1997)
(noting that the Court reviews for clear error the Board’s determination of the appropriate degree of
disability). Furthermore, because the Board’s explanation for that denial communicated to Mr. Bell
the precise basis for its degree-of-disability determination and was sufficiently detailed to facilitate
judicial review, the Court also concludes that the Board provided adequate reasons or bases for its
decision in this regard. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
B. Effective Date Earlier than July 1, 2008
Mr. Bell also argues that the Board clearly erred in denying him an effective date as early as
June 2008 for the 10% evaluation for tinea versicolor. Appellant’s Br. at 2-3. However, Mr. Bell
fails to recognize that he is already in receipt of the earliest possible effective date authorized by
statute.
Pursuant to 38 U.S.C. § 5110(b)(1), the earliest effective date that a veteran can receive for
an award of disability compensation is “the day following the date of the veteran’s discharge or
release,” which in this case is July 1, 2008. See Meeks v. West, 12 Vet.App. 352, 354-55 (1999)
(explaining the mechanics of section 5110(b)(1)); 38 C.F.R. § 3.400(b)(2)(i) (2015). Because the
Board restored the veteran’s 10% tinea versicolor evaluation to July 1, 2008 (R. at 9, 11), there is no
legal basis for awarding an earlier effective date, and his argument must fail as a matter of law. In
addition, to the extent that Mr. Bell asserts that an earlier effective date is warranted because the RO
mischaracterized his June 2009 SSC as a claim for an increased evaluation rather than as a Notice
of Disagreement with the August 2008 rating decision (Appellant’s Br. at 10), any error in that regard
is harmless because he is already in receipt of the earliest possible effective date allowable under the
law. See 38 U.S.C. §§ 5110(b)(1), 7261(b)(2); Sanders, 556 U.S. at 409.
Accordingly, the Court concludes that the Board did not clearly err in assigning an effective
date of July 1, 2008, for the 10% tinea versicolor evaluation. See Evans v. West, 12 Vet.App. 396,
401 (1999) (stating that the Court reviews for clear error the Board’s effective-date determination).
9
Nor did it fail to provide adequate reasons or bases for that determination. See 38 U.S.C.
§ 7104(d)(1); Gilbert, 1 Vet.App. at 52.
III. CONCLUSION
Upon consideration of the foregoing, the September 12, 2014, Board decision is AFFIRMED.
DATED: August 24, 2015
Copies to:
Joseph Bell
VA General Counsel (027)
10

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