Citation Nr: 1753068 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 99-04 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a rating in excess of 10 percent for dermatophytosis of the feet and groin beginning June 24, 2009. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to June 1982. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. The Veteran filed a notice of disagreement (NOD) with respect to this decision in October 1998. A statement of the case (SOC) was issued in February 1999, and the Veteran perfected his appeal in March 1999. The Board remanded this appeal in July 2000 for clarification of the Veteran's representation. The RO clarified the Veteran's representative and the case again came before the Board. The appeal was remanded in August 2005 for Veterans Claims Assistance Act of 2000 (VCAA) notice and a new VA examination, as there had been a change in the pertinent regulations during the pendency of the appeal. The RO was instructed to obtain a new VA examination addressing the new rating criteria and to readjudicate the Veteran's claim under both the old and the new regulations. The Veteran was afforded a new examination in February 2007. September 2007, April 2008, and July 2008 supplemental statements of the case (SSOC) continued the 10 percent rating for dermatophytosis and found the Veteran was not entitled to a higher rating. The Board remanded the case in December 2008 for a new VA examination, as the Veteran and his wife reported worsening the Veteran's condition since the February 2007 examination. The examiner was asked to specifically provide an opinion on questions relating to the pre-and-post August 2002 criteria for rating skin disorders. The Veteran was afforded a new VA examination in September 2009. October 2009 and January 2010 SSOCs continued the Veteran's 10 percent rating for dermatophytosis. In June 2010, the Veteran's appeal was again remanded as the Board found that the September 2009 examination did not address the questions asked in the December 2008 Board remand. The RO was instructed to obtain an addendum opinion to answer the question of whether the Veteran's dermatophytosis of the feet and groin "is manifested by ulceration, extensive exfoliation or crusting, systemic or nervous manifestations, or has been exceptionally repugnant." An addendum VA opinion was provided in April 2015. A March 2016 SSOC continued the Veteran's 10 percent rating for dermatophytosis. In February 2017, the Board granted an increased rating of 30 percent, but no higher, for dermatophytosis of the feet and groin prior to June 24, 2009. The Board remanded the period beginning June 24, 2009 for a new VA examination, as the record did not contain a recent examination. The Board also directed the RO to request any treatment records identified by the Veteran as not currently associated with the claims file. The Veteran was provided a VA examination in July 2017, which the Board finds adequate for adjudication purposes. Although the VA examiner did not directly answer the question asked in the January 2017 remand of whether the Veteran's dermatophytosis of the feet and groin "is manifested by ulceration, extensive exfoliation or crusting, systemic or nervous manifestations, or has been exceptionally repugnant," his responses were sufficient to reasonably infer an answer to the question presented and to adequately evaluate the rating criteria. The examiner stated that the Veteran was diagnosed with dermatophytosis but did not have any visible skin condition on his exposed body area and did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to dermatophytosis. Considering this response, it can be reasonably inferred that the Veteran's dermatophytosis is not characterized by ulceration, extensive exfoliation or crusting, systemic or nervous manifestations, and is not exceptionally repugnant. In compliance with the remand directive, new treating records were identified at the G.V. (Sonny) Montgomery VA Medical Center, which were obtained and associated with the claims file. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). A July 2017 SSOC continued the Veteran's 10 percent rating for dermatophytosis for the period beginning June 24, 2009. The appeal is again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT For the period beginning June 24, 2009, the Veteran's dermatophytosis of the feet and groin has not been characterized by exudation or itching, constant, extensive lesions, marked disfigurement; has not affected at least 20 percent of his body or of exposed area, and has not required systemic corticosteroid or other immunosuppressive drugs for a total duration of at leas 6 weeks in a 12 month period. CONCLUSION OF LAW For the period beginning June 24, 2009, the criteria for a rating in excess of 10 percent for dermatophytosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.118, 4.118, Diagnostic Codes 7806, 7813 (2017), Diagnostic Codes 7806, 7813 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). During the pendency of this appeal for an increased rating, the applicable rating criteria for skin disorders were revised effective August 30, 2002, and October 23, 2008. In situations such as this, the Board considers both the former and the current schedular criteria, although if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). Although an award based on the revised criteria is improper prior to the date that criteria became effective, there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. In this case, the criteria in place when the Veteran filed his claim that led to the 1998 rating decision are more favorable to the Veteran than the revised criteria. Prior to August 30, 2002, dermatophytosis was rated under Diagnostic Code 7813, which in turn was rated as eczema under Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2001). Eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area, warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). A 30 percent rating is warranted if eczema is accompanied by exudation or itching constant, extensive lesions, or marked disfigurement. Id. The Veteran is not entitled to a higher rating under the pre-2002 criteria because he did not have exudation or itching constant, extensive lesions, or marked disfigurement during the pendency of the appeal. At worst, during a flare-up, he had an external scaly rash and an erythematous vesicular rash. Since June 24, 2009, the Veteran has received regular medical care for a variety of conditions from the G.V. (Sonny) Montgomery VA Medical Center. The Veteran was treated for a rash in February 2017, discussed below. However, other treating records dated after June 24, 2009, indicate that the Veteran had no current symptoms of dermatophytosis. Specifically, treating notes from September 2009, November 2009, and November 2014 indicate that the physical exam showed no rash. Treating records from July 2014 indicate negative findings for the skin and no reports of rashes, sores, or other lesions. A skin assessment in February 2015 indicated the Veteran's skin was normal. The Veteran was seen in the G.V. (Sonny) Montgomery VA Medical Center Emergency Room in February 2017 for a rash to his legs and feet. The medical report indicates an external scaly rash to the lateral and plantar surfaces of both feet and an erythematous vesicular rash to the dorsal metatarsal area and right mid pretibial area. The Veteran was prescribed an anti-fungal and a corticosteroid, Lamisil and Betamethasone cream, for treatment and was instructed to return to the clinic as needed if there was no improvement. The Veteran was afforded a VA examination in July 2017. The Veteran reported symptoms of itching and breaking out with sores to his feet and groin area with some spreading to his legs. The Veteran reported a flare-up of his condition in February 2017 and treatment with Lamisil and Betamethasone. The examiner's evaluation stated that the Veteran was treated with systemic corticosteroids or other immunosuppressive medications for less than six weeks in the past 12 months and was treated with topical corticosteroids and other topical medications for less than six weeks in the past 12 months. On physical examination, the examiner stated that the Veteran did not have any visible skin conditions and did not have any pertinent physical findings, complications, conditions, signs or symptoms related to his dermatophytosis. The Veteran contends he is entitled to a rating in excess of 10 percent, beginning June 24, 2009, for his dermatophytosis. In the July 2017 and October 2017 representative letters, the representative noted that the Veteran stated he suffers from constant pain and itching, as well as scaling of his feet, due to his service-connected dermatophytosis, which, according to the Veteran, requires constant treatment and medication. The Board finds the Veteran's statement is outweighed by the post July 2009 treatment records which do not indicate the Veteran reported constant pain and itching to his medical providers, nor do they indicate he required constant medication. Based on the totality of the evidence, the Veteran's disability does not approximate the criteria for a rating in excess of 10 percent for his dermatophytosis under the pre-August 2002 regulations. For a rating of 30 percent under the pre-August 2002 regulations, the evidence would have to show exudation or itching constant, extensive lesions, or marked disfigurement. As noted above, the evidence indicates that on numerous occasions, treating records indicate normal skin or no evidence of rashes, sores, or lesions. During the Veteran's 2017 flare-up, the evidence showed a scaly rash, but there was no mention of exudation or itching constant, extensive lesions, or marked disfigurement. The Board has considered other potentially applicable diagnostic codes. Effective August 30, 2002, dermatophytosis is evaluated under Diagnostic Code 7813, which in turn is rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, as scars under Diagnostic Codes 7801-7805, or as dermatitis under Diagnostic Code 7806, depending on the predominant disability. Under Diagnostic Code 7806, a 10 percent rating is warranted when there is 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 is required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. Id. Diagnostic Codes 7800-7805 are not applicable because there is no indication in the available medical evidence of record that the Veteran has burn scars or scarring and/or disfigurement of any kind on her face, neck or body as a result of his service-connected skin disorder. The rating criteria for skin disabilities were again revised effective October 23, 2008. See 73 Fed. Reg. 54708 (Sept. 23, 2008). However, the change in law did not impact the evaluation of dermatophytosis. The Veteran's disability does not approximate the criteria for a rating in excess of 10 percent under the post-August 2002 regulations. As noted above, the July 2017 VA examiner stated that there were no visible skin conditions or other pertinent physical findings. The examiner stated that the Veteran has been treated with systemic and topical therapy, but for less than 6 weeks during the past 12 months. As such, the evidence does not show that 20 to 40 percent of the Veteran's body of exposed area was affected, or that more than 6 weeks of systemic therapy was required. In an August 2017 letter, the representative stated that "a veteran who requires corticosteroids or other immunosuppressive drugs for 'a total duration of six weeks or more' is entitled to at least a 30 percent disability rating." The Veteran's representative contends that the examiner did not indicate how many total weeks out of the year the Veteran was required to use medication, regardless of the type of medication. However, the regulations actually state that systemic therapy, such as corticosteroids or other immunosuppressive, must be required for a total duration of six weeks or more. The July 2017 examiner specifically stated that the Veteran required less than six weeks of systemic therapy during the prior 12 months. Furthermore, it was recently held by the United States Court of Appeals for the Federal Circuit that a topical corticosteroid does not rise to the level of "systemic therapy." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In this case, the Veteran's use of corticosteroids has been limited to topical applications of the groin and feet. Therefore, despite the VA examiner opinion, the Board does not consider the Veteran's use of a topical corticosteroid to the groin and feet to be "systemic therapy" for VA purposes. In conclusion, for the period beginning June 24, 2009, the Veteran's level of disability most closely approximates the criteria for a 10 percent disability rating, and a higher disability rating is not warranted. II. Extraschedular Consideration and Total Disability Rating Based on Individual Unemployability The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. In determining whether a referral for extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that the Veteran's symptoms associated with his skin condition, to include pain, itching, scaling, and treatment with medication are contemplated by the schedular rating criteria. Although the July 2017 VA examination determined that the Veteran's skin disorder impacted his ability to work, this determination was based on the Veteran's statement that itching effected his ability to stand or sit for long periods of time. The pre-August 2002 regulations specifically consider itching in the rating criteria. As such, the Board finds the schedular evaluation adequate. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, no further inquiry is required. Similarly, the Board recognizes that a claim for a total disability rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Although the July 2017 VA examination indicated that the Veteran's skin condition impacted his ability to work, based on the Veteran's statements that itching effected his ability to stand and sit for long periods of time, the Veteran has not claimed that his skin condition prevented him from working. Therefore, neither the Veteran nor the record has raised the question of unemployability due to service-connected disability. No further discussion of a TDIU is necessary. ORDER Entitlement to a disability rating in excess of 10 percent for dermatophytosis of the feet and groin since June 24, 2009 is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs