Citation Nr: 1756543 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-25 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial rating for bilateral tinea pedis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from February 1963 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 notification of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2016 decision, the Board remanded the Veteran's issue on appeal for a VA examination addressing the Veteran's bilateral tinea pedis. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its June 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Specifically, the November 2016 examiner reviewed the Veteran's medical records, examined his bilateral tinea pedis, and addressed systemic therapy inclusive of topical corticosteroids. The Board notes an October 2017 brief from the Veteran's representative addresses service connection for hearing loss and tinnitus. A November 2016 rating decision granted service connection for bilateral hearing loss rated at 40 percent. The decision also granted service connection for tinnitus rated at 10 percent. The Board remanded these service connection issues in June 2016. As such connection has now been granted and a notice of disagreement has not been filed, these issues are no longer in appellate status. FINDING OF FACT The evidence does not show that the Veteran's bilateral tinea pedis covered at least five percent of his total body, five percent of the exposed area, or required corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107(2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an initial compensable rating for his bilateral tinea pedis disability. The Veteran and his representative have not alleged any deficiency in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. Legal Criteria and Analysis The Veteran's bilateral tinea pedis has been rated under Diagnostic Code 7813-7806 for exposure of dermatophytosis. Diagnostic Code 7813 directs the rater to consider codes 7800 through 7806. The Board finds that Diagnostic Code 7806 is most appropriate as the Veteran's skin disability does not affect his face, head, or neck. See 38 C.F.R. § 4.118. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Diagnostic Code 7806 provides that a skin disability that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period, should be rated noncompensably (0 percent) disabling. A 10 percent rating is warranted for a skin disability covering 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 12-month period. Thirty and sixty percent ratings are given for skin disabilities affecting 20 or more percent of the entire body or 20 or more percent of exposed areas affect; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, near-constantly, or constantly during the past 12-month period. 38 C.F.R. § 4.118. Based on the relevant medical and lay evidence of record, the Board finds that the criteria for a compensable rating for tinea pedis have not been met. See 38 C.F.R. § 4.118, Diagnostic Code 7813, 7806. The evidence shows that the Veteran's skin disability was painful and occasionally blisters at approximately the size of a quarter on his feet, but covers less than five percent of his total body, less than five percent of the exposed area, and requires only topical treatment. See generally, VBMS 11/22/2016, C&P Exam A; VBMS 11/22/2016, C&P Exam B, at 2. At the November 2016 VA examination, the Veteran describes his tinea pedis as a quarter-size lesion appearing on his feet approximately once a month. The lesion is treated with topical Ketoconazole 2% cream when he has an outbreak. He also uses prescription strength Desenex powder daily on his feet as a preventative measure. The Veteran also does not use a topical corticosteroid. See VBMS 11/22/2016, C&P Exam A at p. 3, 4. As such, the Board finds that the preponderance of the evidence does not show a compensable level of disability under Diagnostic Code 7806. 38 C.F.R. § 4.119. Additionally, the 2016 VA examiner remarked that photographs were not indicated for this evaluation, there was is no change in the diagnosis, and, at the time of the examination the skin disability was in remission. The Board finds that the Veteran's competent lay description of his flare ups is sufficient to rate the skin disability of the feet. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)) (concluding that examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time); but see Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare-up as such did not affect his earning capacity and the worsened condition did not last more than a few days). The Board notes that the November 2016 skin diseases disability benefits questionnaire indicated that the Veteran uses topical corticosteroids and listed the Ketoconazole 2% cream as a topical corticosteroid. See VBMS 11/22/2016, C&P Exam A at p. 4. However, the Veteran's medical records from July to November 2016 indicate that he used the Ketoconazole cream, but as an anti-fungal medication, not a corticosteroid. See VBMS 11/23/2016, CAPRI D at p. 8, 27, 33 (listing Ketoconazole 2% cream among active medication with instructions to apply 2x daily for fungal infection). In any case, the application of Ketoconazole is topical and not systemic. See Johnson v. Shulkin, 862, F.3d 1351, 1355 (Fed. Cir. 2017) (holding that, under DC 7806, "the use of topical corticosteroids does not automatically mean systemic therapy because DC 7806 distinguishes between systemic and topical therapy"). Additionally, in the medical opinion from the disability benefits questionnaire, the examiner stated "[t]here is no continual >6 wks. use of topical corticosteroid." See VBMS 11/22/2016, C&P Exam B Medical Diagnosis at p. 2. Without additional areas of affected skin, or the use of corticosteroid or immunosuppressive drugs, the Veteran's skin disability does not satisfy the criteria for a compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813. A June 2007 VA examination report reflect that the Veteran had long-standing intermittent tinea pedis. A skin examination at that time revealed mild stable tinea pedis of the toes and mild onychomycosis of the great toe nails, bilaterally. It was noted to be controlled with topical treatment. The Board acknowledges several lay statements, to include ones from the Veteran's ex-spouse and an employee of the Veteran's in 2008. The Veteran's ex-spouse stated that the Veteran told her that he contracted jungle rot on both feet that required continued treatments from physicians and such treatment continued throughout the time they were married. The Veteran's employee stated that the Veteran had infection on his feet, both bottoms and sides, that caused the Veteran many days of pain and unable to work. The Board considered all potentially applicable Diagnostic Codes in accordance with Schafrath, 1 Vet. App. at 589; however, the probative and competent evidence does not show tinea pedis symptoms that could be rated compensable under another Diagnostic Code. See 38 C.F.R. § 4.118. In this regard, the Board places greater weight on the VA examination and treatment reports noted above as they were performed by person with medical training and experience than the lay evidence. Indeed, the November 2016 examination was performed by a medical doctor. Further, the Board finds that the probative and competent evidence shows generally the same symptoms throughout the period on appeal such that staged ratings are not appropriate. See Hart, 21 Vet. App. at 509-10. As such, the preponderance of the evidence is against a compensable rating. ORDER A compensable rating for bilateral tinea pedis is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs