Citation Nr: 1645919 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 07-17 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation excess of 30 percent for dermatophytosis of the feet for the period from June 30, 2006 until July 1, 2015. 2. Entitlement to an evaluation in excess of 10 percent for dermatophytosis of the feet from July 1, 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the 10 percent rating for skin disorder of the bilateral feet. A November 2011 rating decision increased the rating to 30 percent effective June 30, 2006. By April 2015 rating decision the Veteran's skin disorder of the bilateral feet was decreased to 0 percent effective July 1, 2015; by rating decision dated March 2016 the skin disorder of the bilateral feet was increased to 10 percent effective July 1, 2015. By rating decision dated July 2013, the RO denied service connection for seborrheic dermatitis of the face, neck, abdomen, back and legs. The Veteran's case has been remanded in August 2010, December 2011 and August 2012. As rating decisions have been issued, VA treatment records obtained, and VA examinations conducted, all remand instructions are complete. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). 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). FINDING OF FACT The Veteran's dermatophytosis has required near-constant systemic therapy to include topical corticosteroids. It has never manifested as exfoliative dermatitis, with generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for the Veteran's service-connected dermatophytosis are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Codes 7813-7806 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In regard to the Veteran's claim for entitlement to an increased rating for service-connected dermatophytosis, because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA, 38 U.S.C.A. § 5103 (a) (West 2014) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Further, a July 2006 VCAA letter satisfied the requirements. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). The Veteran was provided several VA examinations for his skin, in July 2006, December 2010, February 2012, July and December 2013, and May 2015. Each examiner took into account the Veteran's reported history, his current symptoms, and review of the available private and VA treatment records. Therefore, the Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no indication that a staged rating is appropriate here. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Legal Criteria for Increased Rating for Skin Disability Amendment was made to certain criteria for rating the skin, effective October 2008. See 73 Fed. Reg. 54,708 (2008) (codified at 38 C.F.R. § 4.118 , DCs 7800 to 7805 (2014)). However, the amended regulations effective October 2008 are only applicable to claims received on or after October 23, 2008, or if the Veteran requests review under the clarified criteria, which is not the case in the current claim. See 73 Fed. Reg. 54708 (2008). As such, the Board will not consider these regulations in this case. Under Diagnostic Code 7813, rating occurs under Diagnostic Code 7806. Under Diagnostic Code 7806, dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated at 60 percent; with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated at 30 percent; with 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated at 10 percent. Topical corticosteroids are corticosteroids pursuant to the 60 percent rating criteria for skin. In a recent decision, the Court held that the language of Diagnostic Code 7806 is unambiguous, as the diagnostic code explicitly mentions corticosteroids as an example of systemic therapy and does not further distinguish between different types of corticosteroid application. Otherwise stated, as used in Diagnostic Code 7806, "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs [ ] required during the past 12-month period," defines systemic therapy as the use of corticosteroids without any limitation of type of use. See Johnson v. McDonald, 27 Vet. App. 497, 502 (2016). The Board acknowledges that there is stay on appeals in regard to Johnson, but this stay does not apply to Advanced on the Docket cases, as here. The Board finds the evidence is at least in equipoise that the Veteran was taking corticosteroids on a daily basis throughout the appeals period. Again, under Diagnostic Code 7806, dermatitis with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period is rated at 60 percent disabling. The Veteran appeared for a VA examination in July 2006, for dermatophytosis bilateral foot with toenail involvement, tinea pedis and mycotic nails. The Veteran was treating the condition with Clotrimazole topical cream twice daily. Less than 5 percent exposed and total body areas were impacted. Treatment records dated from May to December 2006 of the VAMC in Gainesville, Florida reflect that the Veteran was prescribed hydrocortisone cream and triamcinolone acetonide cream for skin disorders, topical corticosteroids. See https://www.drugs.com/cdi/hydrocortisone.html; https://www.drugs.com/cdi/triamcinolone-cream.html. By his May 2007 substantive appeal, the Veteran stated that in addition to his feet, his skin disorder had spread to include his abdomen, back, face, neck, and legs. VA treatment records dated June 2009 note Terbinafine topical cream prescribed for fungal infection. Treatment records dated from November 2009 of the VAMC in Gainesville, Florida reflect that the Veteran was prescribed hydrocortisone cream and triamcinolone acetonide cream for skin disorders. The Veteran appeared for a VA examination in December 2010. The examiner noted dermatophytosis with treatment to include Hydrocortisone cream over the past year. Red, scaling skin and photodamaged skin was 20-40 percent of exposed areas. The Veteran appeared for a VA examination in February 2012. The Veteran was noted as being treated with topical corticosteroids on a constant basis. The total body area and exposed area was noted as less than 5 percent. The examiner noted skin condition of the face, toes, groin, neck, chest, arms and hands. The Veteran appeared for a VA examination in July 2013. The examiner stated the Veteran was treated over the past year for topical corticosteroids, 6 weeks or more, but not constant. The examiner stated the dermatitis was less than 5 percent of the total and exposed body area. The examiner stated that the Veteran's service-connected dermatophytosis of the feet had not spread to face, neck, arms, legs and torso, as those areas were sun damaged, and sun exposure would be pre and post service. The Veteran appeared again in December 2013 and was seen by a physician; the Veteran described his dermatophytosis of the feet as manifesting in itching and scaliness, with flare-ups, and confirmed he uses topical corticosteroid cream to include on his feet on a daily basis. The physician confirmed that other symptoms of the feet, such as swelling, was not due to the dermatophytosis. A December 2014 treatment record from the Gainesville, Florida VAMC reflects that the Veteran was "battling a rash" and has been treated with antibiotics, steroids, and creams; he was given recently a steroid injection and an antibiotic. Active medications included hydrocortisone cream, triamcinolone acetonide cream and prednisone tablets, taken orally; prednisone is a corticosteroid. See https://www.drugs.com/prednisone.html. In January 2015, an undated letter from DNP-ARNP-BC, A.E.M., Dermatology, Gainesville VAMC, addressed to the Veteran, was associated with the claims file. While the letter was undated, it appears to cover the January 2015 time period, as it refers to hospitalization, which occurred in December 2014. It indicated that the Veteran's service-connected skin condition manifests with flare-ups and there is no cure for the skin disorder. She stated that the Veteran was recently hospitalized for a severe flare-up of the service-connected skin condition. She stated the while there is no cure, the skin disorder is best managed with topical steroids and oral antihistamines, which the Veteran is prescribed. The Veteran appeared for a VA examination in May 2015. The examiner stated that the Veteran used only moisturizers for his skin condition, which the VA treatment records confirms is not accurate. The examiner stated the Veteran suffered from eczema which covered no areas of the body, and sun damaged skin on forearms, as well as a few erythematous papules on his back and lower legs. The examiner stated that the dermatophytosis of the feet was unrelated to his sun-damaged skin and eczema. January to March 2016 treatment records from the Gainesville, Florida VAMC reflects that the Veteran is using hydrocortisone cream as an active medication for skin disorders. If the evidence is in equipoise, doubt is resolved in favor of the Veteran. The record here suggests that the Veteran has been prescribed systemic therapy for his dermatophytosis of the feet on a near-constant basis over the appeals period. The Veteran has consistently and repetitively been prescribed systemic medication including topical corticosteroids throughout the pendency of the appeal; as such, a 60 percent rating is warranted. This decision is in accordance with giving the Veteran the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. A higher rating is not possible under the schedule of ratings for skin under the facts of the Veteran's case. A higher rating is only possible under the DC 7817 code for exfoliative dermatitis, in which is rating of 100 percent is warranted for generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. 38 C.F.R. § 4.118. There is no indication that the Veteran's dermatophytosis has the above manifestations, nor has the Veteran claimed such. In fact, in the latest October 2016 Appellate Brief, the Veteran requested a rating of 60 percent for his skin disability. Rating Reduction As previously stated, this case involves a rating reduction over the course of the appeal. By April 2015 rating decision the Veteran's skin disorder of the bilateral feet was decreased to 0 percent effective July 1, 2015; by rating decision dated March 2016 the skin disorder of the bilateral feet was increased to 10 percent effective July 1, 2015. While the rating decisions which implemented the rating reduction are not on appeal, the Board will nevertheless explain why the rating reductions are not proper as they are relevant to the present appeal and effectively overruled by this decision. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2014). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1 , 4.2, 4.10, 4.13. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. Here, the rating reduction was based upon the February 2012 and July and December 2013 VA examinations, which indicated that the Veteran suffers from sun damage to his skin which is not service-connected. However, as explained in the December 2013 VA examination, the Veteran continues to suffer from itchiness and scaliness from his dermatophytosis of the feet, with flare-ups, and treats the condition with corticosteroid creams. The treating nurse's letter submitted January 2015 also states that there are flare-ups of the service-connected skin condition and it is treated with topical corticosteroids and oral antihistamines. While there is evidence of non-service connected as well as service-connected skin disabilities, there is an equipoise of evidence that the Veteran's service-connected skin disability of the feet is an active problem treated with topical corticosteroids and oral antihistamines. As such, there is insufficient evidence that an improvement in the disability occurred and rating reduction is void. Extraschedular Considerations The record does not establish that the schedular criteria are inadequate to evaluate the Veteran's dermatophytosis disability of the feet so as to warrant the assignment of a higher evaluation than 60 percent on an extra-schedular basis. There is no showing that the Veteran's disability is manifested by symptomatology not contemplated by the rating criteria. Accordingly, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Rice Considerations Further, the Veteran has not stated, nor has the record itself raised, that his employability is hindered by his service-connected skin disability. As such, the Board does not consider entitlement to TDIU with this increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. ORDER Entitlement to an evaluation of 60 percent but no higher is granted for dermatophytosis of the feet for the entire period under consideration in this appeal, subject to the regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs