Citation Nr: 1802590 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-25 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 10 percent for tinea versicolor. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served honorably on active duty from March 1982 to March 1988. His second period of active service from March 1988 to March 1993 has been deemed dishonorable for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran appeared at a hearing before the undersigned in July 2016. A transcript of the hearing is of record. FINDING OF FACT The Veteran's tinea versicolor affects more than 20 percent of his entire body but less than 40 percent of his entire body or exposed areas and does not require constant or near-constant systematic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for tinea versicolor have been met since September 9, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7899-7813 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. An October 2012 rating decision granted service connection for tinea versicolor with an initial 10 percent rating, effective September 9, 2011, under Diagnostic Code 7813. Tinea versicolor is rated by analogy under Diagnostic Code 7813 because it is not listed in the rating schedule. Diagnostic Code 7813 provides that the requisite skin disorder should be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. Here, the record does not reflect any evidence of scarring related to the Veteran's tinea versicolor. VA examiners in September 2012, January 2013, and March 2013 all reported the Veteran's tinea versicolor has not resulted in scarring. There is also no evidence of any disfigurement of his head, face, or neck as a result of tinea versicolor. VA examination reports and private treatment records establish tinea versicolor does not affect the skin on the Veteran's head, face, or neck. Therefore, the Board will determine the appropriate rating for tinea versicolor under Diagnostic Code 7806 in this case. Under Diagnostic Code 7806, a noncompensable evaluation is assigned when less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected; and, no more than topical therapy is required during the past 12-month period. A 10 percent evaluation is warranted when 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 are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent evaluation 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. A 60 percent evaluation is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. As previously noted, VA provided examinations in September 2012, January 2013, and March 2013. September 2012 and March 2013 VA examiners reported tinea versicolor affects between 5 and 20 percent of the Veteran's entire body with no exposed areas affected. The January 2013 VA examiner reported tinea versicolor affects between 20 and 40 percent of the Veteran's entire body with no exposed areas affected. The Veteran's private physician, S.H.S., M.D., has provided a statement indicating tinea versicolor affects approximately 21.5 percent of the Veteran's entire body. The Veteran waived initial consideration of this statement by the Agency of Original Jurisdiction (AOJ) during his July 2016 hearing and explained it is a more accurate representation of his disability than some of his previous examination reports because S.H.S., M.D., was able to examine him during a flare-up of tinea versicolor. The Board finds the evidence is in at least relative equipoise as to whether tinea versicolor affects more than 20 percent of the Veteran's entire body. Two VA examiners have reported tinea versicolor affects between 5 and 20 percent of the Veteran's entire body. One VA examiner and the Veteran's private physician have reported tinea versicolor affects between 20 and 40 percent of the Veteran's entire body. There is no indication that any of these experts is more or less qualified than the others. Thus, the evidence is essentially evenly balanced regarding this material issue. Resolving reasonable doubt in the Veteran's favor, the Board finds a 30 percent rating is warranted for tinea versicolor from the effective date of service connection, September 9, 2011, as the evidence establishes that it is at least as likely as not tinea versicolor has affected between 20 and 40 percent of the Veteran's entire body since that date. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. There is no evidence tinea versicolor affects more than 40 percent of the Veteran's entire body or exposed areas. There is also no indication the Veteran's tinea versicolor requires constant or near-constant systematic therapy such as corticosteroids or other immunosuppressive drugs. VA examiners have explicitly denied this type of impairment is present in the Veteran's case, and there is nothing noted in private treatments to the contrary. The record indicates the Veteran is prescribed topical corticosteroids for intermittent use to control flare-ups of tinea versicolor. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the U.S. Court of Appeals for the Federal Circuit held the use of topical corticosteroids does not automatically qualify as systemic therapy as used in Diagnostic Code 7806. The Federal Circuit explained topical therapy that affects only the area to which it is applied does not rise to the level of systematic therapy. There is no indication the intermittent use of topical corticosteroids in the Veteran's case has any affect beyond the area to which they are applied. Further, there is no indication the Veteran is required to use these medications on a constant or near-constant basis. Thus, the preponderance of evidence is a finding that a rating in excess of 30 percent is warranted for tinea versicolor and, to that extent, the appeal is denied. Nevertheless, the evidence establishes a 30 percent rating is warranted for tinea versicolor from the effective date of service connection and, to that extent, the appeal is granted. ORDER Entitlement to a 30 percent rating, but no higher, for tinea versicolor, effective September 9, 2011, is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs