Citation Nr: 1756742 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-07 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating greater than 10 percent for tinea pedis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to May 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal was certified by the RO in Houston, Texas (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including Legacy Content manager and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic systems. The Veteran testified at a May 2016 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. During the May 2016 hearing, the Veteran waived initial review of any additional evidence by the AOJ. See 38 C.F.R. § 20.1304(c) (2015). In September 2016, the Board remanded the claim for further adjudication, including consideration by the Director, Compensation Service, for extraschedular consideration. The Director determined a 10 percent evaluation was warranted on an extraschedular basis by rating the Veteran's tinea pedis under Diagnostic Code (DC) 7804, using the analogous criteria for unstable scars. In a July 2017 rating decision, the AOJ granted a 10 percent rating under DC 7804-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. The appeal has now been returned to the Board for further adjudication. FINDING OF FACT The Veteran's tinea pedis does not affect at least 5 percent or more of the entire body and is not treated with systemic therapy; however, it is analogous to two painful and unstable scars. CONCLUSION OF LAW The criteria for an initial evaluation of 20 percent rating effective October 23, 2008, but no higher, for tinea pedis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.118, DCs 7804, 7806 (2017); 38 C.F.R. § 4.118 DC 7804 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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). The Board also finds substantial compliance with its prior remand directives. In this respect, the AOJ obtained updated VA treatment records, obtained an adequate VA examination which addressed the questions posed by the Board, referred the case to the Director of Compensation and Pension for extraschedular consideration, and readjudicated the claim. Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing the appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The Veteran's tinea pedis is currently rated as 10 percent disabling under the hyphenated DC 7804-7806. It has also been evaluated under DC 7806. DC 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under DC 7806 or to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118. DC 7806 provides that dermatitis or eczema that involves less than five percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated as noncompensable (0 percent) disabling. Dermatitis or eczema that involves 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 10 percent disabling. Dermatitis or eczema that involves 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 30 percent disabling. Dermatitis or eczema that involves 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 60 percent disabling. 38 C.F.R. § 4.118. For scars, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 23, 2008. The October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this instance, the Veteran filed a claim for service connection for tinea pedis in September 2003. Therefore, the Board finds that the prior criteria apply. The Board also finds that the current criteria applies based on the directive in DC 7806 that dermatitis or eczema be rated as scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. See also 38 C.F.R. § 4.7. Given the interplay between DC 7806 by rating eczema can be rated as scars, the Board will apply the revised criteria effective to the date of application. Under the prior DC 7804, a 10 percent rating was assignable for scars that were superficial, unstable, or painful on examination. 38 C.F.R. § 4.118, DC 7804 (2007). Under the current criteria for DC 7804, five or more scars that are unstable or painful warrant a 30 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating; one or two scars that are unstable or painful warrant a 10 percent rating. Note 1 to DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. According to Note 2, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804 (2017). Analysis The Veteran seeks entitlement to an initial rating in excess of 10 percent for his service-connected tinea pedis. VA treatment records reflect that the Veteran underwent foot examinations in December 2005 and September 2006. December 2005 VA treatment records indicate skin and nail abnormality upon examination, while September 2006 VA treatment records reflect the feet appeared to be normal bilaterally. During a June 2008 VA examination, the examiner found that tinea pedis was "not existent at this time although there is evidence of some scarring from [t]inea pedis." Subsequent to the June 2008 VA examination, VA treatment records reflect further treatment for chronic tinea pedis bilaterally. See, e.g., November 2008 and December 2009 VA Treatment Records. During a June 2010 VA opinion, the examiner noted that the Veteran's medical records supported a diagnosis of tinea pedis with symptoms of itching and skin lesions, and treated with topical antifungals. The Veteran was not examined concurrent with this opinion. During a June 2011 VA examination, the examiner determined that the Veteran had constant tinea pedis bilaterally, with itching, bloody pus discharge during hot weather, and recurring infections during the summer months. The examiner also noted tinea pedis was treated with a topical powder that was neither a corticosteroid nor an immunosuppressive. During the examination, the Veteran and his spouse reported pain in both feet. During an August 2015 VA examination, the examiner confirmed a diagnosis of tinea pedis. Additionally, the Veteran reported he was currently having a flare during the examination. The examiner noted constant or near-constant treatment with topical medications. The examiner indicated tinea pedis covered less than five percent of the Veteran's total body area, and none of his exposed body area. The examiner also noted scaling bilaterally, but no open lesions, edema, or redness. The examiner indicated that the Veteran's tinea pedis did not impact his ability to work. In an August 2015 addendum, the examiner noted that the Veteran called to report the use of terbinafine one percent cream, an anti-fungal agent, to treat the tinea pedis. During an October 2016 VA examination, the Veteran was again diagnosed with tinea pedis. The examiner noted that the Veteran's tinea pedis is currently treated with hydro-cortisol cream for six weeks or more, but not constant. Upon physical examination, the Veteran's skin infections covered less than five percent of his total body area, and none of his exposed area. The tinea pedis manifested as cracking, flaking, and redness of the feet. The examiner noted that the Veteran reported worsening symptoms during summer months, but denied a history of rash on his neck and arm. In a March 2017 addendum, the examiner noted previous treatment records reflecting arm and neck rash, but concluded that they had resolved as they were not noted upon examination. Additionally, the examiner referred to August 2016 photographic evidence of the Veteran's feet during a flare-up, and noted the flare-ups were "severe." In a July 2017 letter, the Director, Compensation Service, reviewed the evidence of record and determined that tinea pedis should be rated as 10 percent disabling as the Veteran's disability picture more nearly approximated the criteria for multiple scars. The Veteran has testified that the tinea pedis flares-up bilaterally during the summer months, causing his feet to swell and causing boils on his soles to fill with pus. See May 2016 Hearing Testimony. He also testified that he had a similar type of dermatitis on his arm year-round. The Veteran and his spouse are competent to report their observations regarding the Veteran's bilateral foot symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, during the October 2016 VA examination, the Veteran denied a history of rash on his arms and neck, and the March 2017 addendum concluded that any neck or arm rash had resolved. The medical evidence of record indicates that tinea pedis covers less than five percent of the Veteran's entire body and none of his exposed areas. See August 2015 and October 2016 VA Examination. Additionally, the medical evidence reflects treatment of tinea pedis by topical anti-fungals and hydro-cortisol cream. The Board notes that in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the U.S. Federal Circuit Court of Appeals determined that use of topical corticosteroids does not automatically mean systemic therapy, and a topical steroid could be either systemic or topical, based on the circumstances of each case. In this case, the Veteran was predominantly treated with anti-fungals, and was treated with hydro-cortisol for six weeks or more, but not constantly or near-constantly. The Board finds that the evidence reflects the Veteran has been treated with topical therapy in this case, rather than systemic therapy. The Board notes that March 2017 addendum found the photographic evidence reflected "severe" tinea pedis during flare-ups; however, there is no evidence that these flare-ups covered additional area on the Veteran's skin or were treated with systemic therapy. In the absence of tinea pedis that involves at least 5 percent of the entire body, or at least five percent of exposed areas affected, or intermittent systemic therapy, a rating of ten percent disabled under DC 7806 is not warranted. The Board has considered the testimony of the Veteran and his spouse regarding a rash involving his arms, which is deemed credible. However, the frequency and duration of the arm rash symptoms is brief in nature and reflected in the clinic records and does not meet, or more nearly approximate, the criteria for dermatophytosis involving at least 5 percent of the total body for the entire appeal period. However, the Veteran's tinea pedis manifests as cracking, flaking, and redness of the feet; and when clear manifests some scarring. See, e.g., June 2008 and October 2016 VA Examinations. Under DC 7804 prior to October 2008 revisions, a 10 percent rating was assignable for scars that were superficial, unstable, or painful on examination. Both the veteran and his wife have testified that the tinea pedis was painful. See June 2011 VA Examination; May 2016 Hearing Testimony. Therefore, under the prior DC 7804, the Veteran's tinea pedis warrants a disability rating of 10 percent. The Board has also considered rating the Veteran's tinea pedis under the current DC 7804. Under 7804, three or four scars that are unstable or painful warrant a 20 percent rating, and one or two scars that are unstable or painful warrant a 10 percent rating. Additionally, Note 2, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. In this case, the Veteran has tinea pedis on both feet, which is analogous to two scars. Credible testimony exists that tinea pedis on both feet is painful. Additionally, tinea pedis manifests as cracking, flaking, and redness of the feet, and during severe flare-ups has itching, bloody pus discharge. Further, his tinea pedis has been described as scaling bilaterally. See August 2015 VA Examination. The Veteran's bilateral tinea pedis is most analogous to two scars that are both painful and unstable. Therefore, a rating of 20 percent disabling is warranted under the current DC 7804 effective October 23, 2008 - the date of application of the revised criteria. In the absence of more than two scars, a rating in excess of 20 percent is not warranted. Extraschedular Consideration In exceptional cases where schedular evaluations are found to be inadequate, the AOJ may refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Extraschedular ratings are only available for an "exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedule standards." Floyd, 9 Vet. App. at 96. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd, 9 Vet. App. at 96; see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director, Compensation Service, determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). In Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014), the Federal Circuit held that a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. The Veteran asserts that he is entitled to an extraschedular evaluation for his tinea pedis. He is currently in receipt of TDIU, and based on the decision above, has been awarded a schedular rating of 20 percent under DC 7804 for his tinea pedis. The Veteran has several additional service-connected disabilities. The Board addressed the schedular issue in the decision above. In a June 2017 decision, issued by the Director, Compensation Service, found that the evidentiary record showed an exceptional disability pattern tinea pedis and a compensable rating was awarded by analogy to the criteria for scarring. The Director noted that the Veteran's tinea pedis, in this case, could be rated under DC 7804 rather than DC 7806. After reviewing the evidence of record, the Board finds that the compensable ratings now assigned accounts for all reported symptomatology by the Veteran. As all symptoms are now captured by schedular ratings, the Board finds no further basis for compensation. Further, the Board notes that the Veteran has a rating of TDIU on the basis of all of his service-connected disabilities effective to the date of claim - September 3, 2003, so consideration of combined effect of multiple conditions is moot. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial rating of 20 percent for tinea pedis is granted effective October 23, 2008, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs