Citation Nr: 1626529 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 11-21 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for tinea pedis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from January 1964 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, granted service connection for tinea pedis, assigning a noncompensable (0 percent) rating effective from November 5, 2010. In February 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. This matter was previously before the Board in June 2014, at which time the issue of entitlement to an initial compensable rating for the tinea pedis was remanded for further development, including specifically for the provision of a current VA audiological examination and to obtain outstanding VA and private treatment records. That development having been completed, the issue has returned for appellate review. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of records in both electronic repositories. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran maintains that an increased initial rating is warranted for his service-connected tinea pedis. Review of the record shows that the Veteran has received a number of VA foot/skin examinations, including in October 2011 and July 2014. He has also received some level of outpatient treatment from both VA and private providers. This evidence reflects that his tinea pedis has been productive of chronic itching, scaling, fissuring and cracking of the skin of his feet. See, e.g., October 2011 VA Skin Diseases Disability Benefits Questionnaire (DBQ) (diagnosing tinea pedis of the bilateral feet); November 2011 VA Skin Diseases Examination Addendum Report (classifying the Veteran's tinea pedis as "chronic recurrent"); April 2012 VA Primary Care Attending Addendum Note (reflecting that the Veteran "sees a private podiatrist for chronic tinea pedis with fissuring and cracking"); April 2012 VA Primary Care Attending Addendum Note (describing the Veteran's condition as "mild to mod[erate] chronic scaling and fissuring"); April 2012 Letter from P.J.S., D.P.M. (reflecting that the Veteran "has mild to moderate chronic scaling and fissuring despite long term treatment" and noting that suck treatment will likely continue "long into the future" to control his symptoms); July 2014 VA Skin Diseases DBQ (reflecting a diagnosis of tinea pedis affecting less than 5% of the Veteran's total body area and reporting the Veteran's assertion that "[t]he skin itches between the toes all the time"). Additionally, the record reflects that, during the appellate period, the Veteran's chronic skin condition has been treated with various topical and oral medications, including ketoconazole cream, econazole cream, Spectazole cream, urea ointment, and additional oral medications. See, e.g., August 2015 VA Primary Care Follow Up Note (reflecting an active medications list including ketoconazole 2% cream to treat fungal infection); July 2014 VA Skin Diseases DBQ (noting that the Veteran "has been using the prescribed ketoconazole 2% cream which he applies between the toes and the plantar surface of the feet to prevent itching and cracking of the skin"); April 2014 Treatment Record from P.J.S., D.P.M. (reflecting prescribed medications for the treatment of his skin condition including econazole 1% topical cream, Spectazole 1% topical cream, and urea 50% ointment); October 2011 VA Skin Diseases DBQ (stating that the Veteran's skin disability has been treated by "soaps, powders, creams, and oral medication"; noting that the Veteran was "prescribed oral Lamisil in 1/2010 at the VAMC in Charleston"; reflecting "near constant" use of oral medications to treat his condition in the past 12 months; and reporting the Veteran's contention that he was currently "taking an oral medication prescribed by his PMD for foot fungus but he could not remember name at exam"). Based on this evidence, the RO assigned the Veteran's tinea pedis a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813 (2015). DC 7813 applies to dermatophytosis and indicates that this disability is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. The RO determined that the predominant disability is akin to dermatitis (7806) and evaluated the Veteran's tinea pedis as such. See 38 C.F.R. § 4.20 (2015). See also 38 C.F.R. § 4.118, DCs 7800-7805 (requiring the presence of scarring). Under Code 7806 (dermatitis or eczema) a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. 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 are affected; or with the need for intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where the area of involvement is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or with a need for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. The highest (60 percent) rating requires involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas, or with the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs in the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Recently, the United States Court of Appeals for Veterans Claims (Court) has considered the question of the types of treatment that qualify as "systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806. In Johnson v. McDonald, 27 Vet. App. 497 (2016), the Court found that because DC 7806 "explicitly mentions corticosteroids as an example of 'systemic therapy' and does not further distinguish between different types of corticosteroid application," then the use of a topical corticosteroid constitutes "systemic" corticosteroid therapy for the purposes of assignment of ratings under DC 7806. See Johnson, 27 Vet. App. at 502-504; see also 38 C.F.R. § 4.118, DC 7806. Additionally, the Court found that the "topical therapy" identified in the noncompensable rating criteria necessarily referred to "non-corticosteroid" topical treatment. See Johnson, 27 Vet. App. at 504. Subsequently, in Warren v. McDonald, No. 13-3161, 2016 WL 2640983 (Vet. App. May 10, 2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs"; rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." See Warren, 2016 WL 2640983 at *2-*5; see also 38 C.F.R. § 4.118, DC 7806. In so finding, the Court specifically determined that the Board erred in failing to make a determination "as to whether Lamisil is a systemic therapy like or similar to a corticosteroid or other immunosuppressive drug." See Warren, 2016 WL 2640983 at *4 (emphasis in original). In the instant case, as noted, the evidence reflects that, during the appellate period, the Veteran's tinea pedis treatment has included ketoconazole cream, econazole cream, Spectazole cream, urea ointment, and oral medications. However, it is not clear from the record as it currently stands whether any treatment undergone by the Veteran for his tinea pedis can be classified as "a systemic therapy like or similar to a corticosteroid or other immunosuppressive drug." See Warren, 2016 WL 2640983 at *4 (emphasis in original). Thus, in light of foregoing, the Board finds that remand is required for additional medical comment concerning the nature of the Veteran's various tinea pedis treatments. Additionally, the Board notes that there is evidence indicating that the Veteran was prescribed oral medication for his skin condition, including oral Lamisil, at some point during the appellate period. See, e.g., October 2011 VA Skin Diseases DBQ (reporting that the Veteran was prescribed oral Lamisil and further noting that he was currently taking "an oral medication prescribed by his PMD for foot fungus but he could not remember name at exam"). However, there is no indication as to the duration of his oral treatment regimen or the specific oral medications prescribed by his private treating physicians. Therefore, additional inquiry should be made concerning the nature and duration of his tinea pedis oral medication treatment regimen. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims. In particular, request any information concerning any treatment of his tinea pedis by oral medication, to include Lamisil, at any point during the appellate period, so from November 5, 2010, forward. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Obtain any recent outstanding VA treatment records and associate them with the electronic claims file. 3. Thereafter, forward the claims file and a copy of this REMAND to a dermatologist for a supplemental opinion concerning the nature of the Veteran's tinea pedis treatment. The entire claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. After thoroughly reviewing the complete record, to obtaining a complete medical history of the Veteran's tinea pedis, the examining VA dermatologist is asked to identify all medications (i.e. topical creams and oral medications) used to treat the Veteran's condition throughout the pendency of the appeal, so from November 5, 2010, forward. In this regard, the Board notes that the evidence of record identifies treatment for tinea pedis including, but not limited to, ketoconazole cream, econazole cream, Spectazole cream, urea ointment, and additional oral medications such as Lamisil. See, e.g., August 2015 VA Primary Care Follow Up Note; July 2014 VA Skin Diseases DBQ; April 2014 Treatment Record from P.J.S., D.P.M.; October 2011 VA Skin Diseases DBQ. For each medication identified, the examiner is asked to: (1) Note the duration of the treatment (if possible); and (2) Offer an opinion as to whether the medication can be classified as a systemic therapy like or similar to a corticosteroid (topical or otherwise) or other immunosuppressive drug. See Johnson v. McDonald, 27 Vet. App. 497, 504 (2016) (finding that, for purposes of DC 7806, "systemic therapy" includes the use of topical corticosteroids); Warren v. McDonald, No. 13-3161, 2016 WL 2640983 at *2-*5 (Vet. App. May 10, 2016) (holding that the types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs"; rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs"). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to mere speculation, the examiner must provide a complete explanation stating why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 5. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).