Citation Nr: 1755071 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-01 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for bilateral dermatophytosis pedis. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran originally requested a hearing before the Board; however, he subsequently withdrew his request in written correspondence dated in April 2011. Thus, there is no pending hearing request before the Board. In an April 2017 decision, the Board stayed the Veteran's appeal with regard to his claim for a compensable rating for bilateral dermatophytosis pedis pending the resolution of the VA's appeal of Johnson v. McDonald, 27 Vet. App. 497 (2016). As the Federal Circuit has rendered a decision in Johnson, the stay is lifted regarding the Veteran's claim and the Board will proceed with appellate review. The Board also notes that the issues of entitlement to service connection for a left knee disorder, a back disorder, an acquired psychiatric disorder, a left ankle disorder, a right knee disorder, and a bilateral hip disorder; entitlement to an increased evaluation for chronic pharyngitis status post tonsillectomy; and entitlement to TDIU were remanded for further development in April 2017. However, those issues remain in remand status and have not been returned to the Board for appellate review at this juncture. Therefore, the Board will only address the one issue that had been the subject of a stay in April 2017. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral dermatophytosis pedis has affected less than 5 percent of his total body area and exposed areas and required no more than topical therapy during the past 12-month period. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral dermatophytosis pedis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7813 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, as explained below, a uniform evaluation is warranted. The Veteran is currently assigned a noncompensable evaluation for his bilateral dermatophytosis pedis pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813. Diagnostic Code 7813 provides that dermatophytosis (including tinea pedis of the feet) should be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Codes 7806), depending upon the predominant disability. Under Diagnostic Code 7806, a noncompensable evaluation is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy is required during the past 12-month period. A 10 percent evaluation is warranted for dermatitis or eczema affecting 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, 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. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his service-connected bilateral dermatophytosis pedis. The Veteran was afforded a VA examination in February 2010 at which time he reported experiencing an intermittent bilateral foot fungus infection since service. The examiner indicated that the condition occurs on an intermittent basis with symptoms of itching and pain. He diagnosed the Veteran with bilateral interdigital dermatophytosis pedis (tinea pedis) and noted that he uses a topical corticosteroid treatment of clotrimazole twice daily on a constant basis during the previous 12 months, which is an antifungal/corticosteroid. The examiner further indicated that the area affects less than 5 percent of the Veteran's total body area. The Veteran was provided another VA examination in April 2013 during which he reported that he continues to have a fungal infection between his toes, but noted that the condition was improving. He also indicated that he uses medication every day with a good response. The examiner noted that the Veteran did not present with any benign or malignant skin neoplasms or systemic manifestations due to any skin disease. The examiner diagnosed the Veteran with tinea pedis and indicated that he had macerated and scaly skin between the toes of his feet. The examiner further stated that the condition affects less than 5 percent of the Veteran's total body and less than 5 percent of the exposed area. The examiner noted that the Veteran is only treated with clotrimazole, a topical corticosteroid, on a constant/near-constant basis and that the Veteran uses another topical medication, terbinafine, on a constant/near-constant basis. The evidence of record does not show that the Veteran's dermatophytosis affects 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. Indeed, both VA examiners found that the disorder affected less than 5 percent of the total body, and the April 2013 VA examiner also stated that the disorder affected less than 5 percent of exposed areas. In addition, the evidence does not show that 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. Although the Veteran reported using a topical corticosteroid on a constant or near-constant basis, the Federal Circuit has determined that this type of treatment is not systemic therapy that would warrant a higher rating. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) In Johnson, the Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between systemic therapy and topical therapy as the operative terms of the diagnostic code." Johnson, 862 F.3d at 1354. The Federal Circuit explained that systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id at 1355. Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Therefore, while the Veteran's tinea pedis has required constant or near-constant treatment with topical medications, to include topical corticosteroids, the evidence shows that his skin condition has only involved his feet. There is no evidence that large portions of his anatomy are involved, as his skin condition affects less than 5 percent of his entire body and exposed areas, and his corticosteroid treatment is topical and only involves his feet. Therefore, although his skin disorder does require a topical corticosteroid treatment, this treatment cannot be considered systemic therapy as contemplated by the Federal Circuit in Johnson and does not rise to the level contemplated by the next higher 10 percent rating under Diagnostic Code 7806. Further, the Board notes that, during the appeal period, the Veteran had several podiatry visits with no complaints of his tinea pedis or any other fungal disorder. For example, in January 2010, the Veteran presented to the San Juan VA Medical Center for a podiatry consultation with a complaint of left heel pain. In January 2012, the Veteran presented again to the podiatry department with a complaint of an ingrown toenail on his left big toe. Similarly, in May 2015, the Veteran complained of left ankle pain and an ingrown toe nail on his right big toe. Notably, the Veteran never complained of and was never treated for his tinea pedis or any other fungal condition during such podiatry visits. Moreover, the record is silent for any other complaints or treatment of the Veteran's service-connected disability during the appeal period, except for one occasion in March 2011 when the Veteran visited the emergency room complaining of pain in his left heel. At that time, he also reported having "fungus in the foots." As it relates to his foot fungus, which was diagnosed as tinea pedis in the emergency room visit, the Veteran was prescribed clotrimazole, which is a corticosteroid. However, as discussed above, this medication is a topical corticosteroid for the Veteran's feet only and is not systemic in nature. The Board has also considered whether a compensable evaluation is warranted under any other diagnostic codes. However, there are no findings of disfigurement of the head, face, or neck, as the disability only affects his feet. Thus, Diagnostic Code 7800 is not applicable. In addition, there is no evidence of any scars. Indeed, the April 2013 VA examiner indicated that the service-connected disability has not caused any scarring or disfigurement. Therefore, Diagnostic Codes 7801 to 7805 are also not applicable. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For these reasons, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral dermatophytosis pedis. ORDER Entitlement to a compensable evaluation for bilateral dermatophytosis pedis is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs