Citation Nr: 1803620 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-29 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation, prior to February 1, 2016, for tinea cruris and folliculitis. 2. Entitlement to a disability rating in excess of 10 percent, from February 1, 2016, for tinea cruris and folliculitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1998 to September 1998, October 2004 to December 2005, and from June 2006 to November 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2017, the Veteran testified before the undersigned Veterans' Law Judge (VLJ) at a hearing held at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The Board notes that during the appeal, in an October 2016 rating decision, the Veteran's disability rating for tinea cruris and folliculitis was increased to 10 percent, effective on February 1, 2016. The Veteran has not expressed satisfaction with the ratings assigned for the periods before or after that date; therefore, the issues have been characterized to reflect that "staged" ratings are assigned, and that each stage remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was originally represented in this matter by the Veterans of Foreign Wars, as reflected in a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) executed in March 2010. In February 2013, the Veteran submitted a new VA Form 21-22, appointing the Virginia Department of Veterans Affairs as his representative. Finally, in January 2017, the Veteran executed a new VA Form 21-22, appointing Disabled American Veterans as his representative. The Board recognizes these changes in representation and such is reflected on the title page of this decision. FINDINGS OF FACT 1. From August 28, 2008 to October 23, 2008, the Veteran's tinea cruris and folliculitis was treated with systemic antibiotic therapy for a period of at least 6 weeks. 2. Prior to February 1, 2016, excluding the period from August 28, 2008 to October 23, 2008, the Veteran's tinea cruris and folliculitis covered less than 5 percent of his entire body and less than 5 percent of exposed areas were affected by the condition; at no time was it treated with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 3. From February 1, 2016, the Veteran's tinea cruris and folliculitis has been treated on a near-constant basis with systemic antibiotic therapy. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent for tinea cruris and folliculitis from August 28, 2008 to October 23, 2008 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7806 (2017). 2. The criteria for a compensable disability evaluation for tinea cruris and folliculitis, prior to February 1, 2016 and excluding the period from August 28, 2008 to October 23, 2008, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes 7806 (2017). 3. The criteria for an evaluation of 60 percent for tinea cruris and folliculitis from February 1, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran in this case nor his representative has referred to any deficiencies in either VA's duty to notify in this case. Concerning VA's duty to assist, in an October 2016 letter and at the April 2017 hearing, the Veteran challenged the adequacy of a September 2016 VA examination. Specifically, he noted that the examiner found that his tinea cruris and folliculitis covered between 5 and 20 percent of his skin; the Veteran believed the number to be much higher and noted that the examiner came to such a conclusion without examining the Veteran unclothed. The Board finds this argument to be without merit. The Board may assume a VA medical examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). A VA examiner is presumed to have properly discharged his or her duties as a health professional (known as the presumption of regularity) in a review of the record, in interviewing a veteran, and in supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo, supra. The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In the instant case, there is no such evidence. As the Veteran noted in his October 2016 letter, the file contains multiple photographs of the Veteran's back and other areas affected by his skin condition, and an examiner is assumed to have reviewed the entire file in anticipation of creating his or her examination report. Simply put, there is no indication that the examiner failed to properly discharge his duties, aside from the Veteran's generalized assertions. Thus, the Board finds that the duty to assist has been met in this case. Therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Analysis By way of history, the Board granted service connection for tinea cruris and folliculitis (hereinafter, "skin condition") in a February 2013 decision. In the April 2013 rating decision implementing the Board's finding, the RO assigned a non-compensable disability rating from November 8, 2006, the day after the Veteran separated from the Army. As noted in the Introduction, an October 2016 rating decision increased the Veteran's disability rating to 10 percent from February 1, 2016. The Veteran contends that his skin condition warrants a higher rating at all points of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4 (2017). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an original rating on appeal was in error. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's skin condition is evaluated using Diagnostic Code 7806. Under DC 7806, dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body or exposed areas are affected, or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period, warrants a 10 percent disability rating. 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 involved 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. A 60 percent rating is the maximum schedular rating available under this Code. 38 C.F.R. § 4.118. The United States Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under DC 7806. Johnson v. McDonald, 27 Vet. App. 497 (2016). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the VA Secretary that the Court erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" The Federal Circuit noted that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to explain 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 antiinfective applied to a certain area of the skin and affecting only the area to which it is applied." 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. The Board notes that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. The VA Adjudication Procedures Manual (M21), provides that the term "systemic therapy such as corticosteroids or other immunosuppressive drugs" refers to "any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder" citing to M21-1, Part III, subpt. IV, ch. 4, sec. J (3)(f). The types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. See Warren v. McDonald, 28 Vet. App. 194, 197 (2016)(in which oral ingestion of Lamisil was deemed to be "systemic" therapy for treatment of Onychomycosis); see also 38 C.F.R. § 4.118, DC 7806. Thus, as will be explained in detail below, the Veteran will be granted a staged disability rating for his skin condition based on the use of prescribed oral antibiotics. Prior to February 1, 2016 Based on a review of the evidence of record, the Board finds that the Veteran's skin condition warrants a rating of 30 percent disabling from August 28, 2008 to October 23, 2008. However, the evidence clearly shows that the Veteran's skin condition does not warrant a compensable rating at any other period prior to February 1, 2016. As noted above, compensation is available for all oral medication prescribed by a medical professional to treat an underlying skin disorder. See Warren, supra. Here, the evidence shows that the Veteran was prescribed an oral antibiotic on August 28, 2008. A treatment note from September 28, 2008 shows that the antibiotic was still being prescribed. Subsequently, in an October 23, 2008 note, the only prescribed treatment for the Veteran's skin condition was a topical cream. Based on the evidence of record, it is clear that the Veteran's oral treatment of his skin condition was for a duration of at least 4 weeks. However, it cannot pinpoint the exact end point of the treatment and whether it was less than, or more than, 6 weeks' duration. In the face of reasonable doubt, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the Board finds that the Veteran was treated with a systemic therapy for a total duration of six weeks or longer during this period, and an increased rating of 30 percent is warranted for the period from August 28, 2008 to October 23, 2008. A 60 percent rating under DC 7806 is not warranted for that period, however, as the Veteran's skin condition was not found to cover more than 40 percent of exposed areas, nor was it treated with constant or near-constant systemic therapy of any kind. Outside of the period from August 28, 2008 to October 23, 2008, there is no evidence to support an increased rating at any time prior to February 1, 2016. VA treatment notes from 2007 show the Veteran was prescribed ointment. At a January 2008 VA examination, the Veteran's skin condition was determined to be mild in nature and covered a body surface of less than 5 percent, all of which was in unexposed areas. Treatment notes from 2010 and 2011 show shampoos and creams were prescribed to the Veteran, but there was no note of prescribed oral antibiotics. A July 2012 VA examination affirmed that the Veteran's skin condition caused no scarring or disfigurement of the head, face or neck and was not treated with oral or topical medications in the previous 12 months. At that time, his skin condition was found to cover less than 5 percent of his total body area, none of which was exposed. A September 2013 skin examination showed the Veteran's skin was normal. In October 2015, he was prescribed a hydrocortisone cream for scrotum itching. Thus, the Board finds that the Veteran does not meet the criteria for a higher rating at any point prior to February 1, 2012, excluding the period from August 28, 2008 to October 23, 2008. There is no evidence that the Veteran's skin condition covered more than 5 percent of his entire body, or that any sort of systemic therapies were used at any point. The Board notes that a corticosteroid was prescribed in October 2015; however, as noted above, topical corticosteroid treatment does not meet the definition of systemic therapy unless it was administered on a large enough scale such that it affected the body as a whole. Here, the record shows the prescription was discontinued by January 2016, and was intended for application to a small area of the Veteran's body. The Board thus finds that such an application of a topical corticosteroid does not amount to systemic therapy and a higher rating is not warranted based on this single prescription. Johnson v. Shulkin, supra. In reaching this decision, the Board has considered that the Veteran is competent and credible to report the symptoms that he experienced during the appeal period. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned disability rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data. The criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). Here, the medical evidence of record, to include the January 2008 and July 2012 VA examinations, shows that only dermatological symptomatology has been associated with the service-connected skin condition. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating pursuant to the applicable criteria. Finally, although DC 7806 instructs to consider rating the condition as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability, in the instant case the evidence shows that the Veteran's service-connected skin condition has been predominantly manifested by acne and other such pustules, without scarring, on unexposed areas of the body. Thus, the criteria for evaluating disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), is inapplicable in the instant case. Further consideration of DC 7813 for dermatophytosis ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris; also is not warranted as the criteria in this code are duplicative of the criteria in DC 7806, which already have been considered in evaluating the Veteran's skin condition, which includes tinea cruris. In short, there are no other applicable diagnostic codes that need to be addressed in evaluating the Veteran's service-connected skin condition. Thus, the Board finds that a 30 percent rating, but no higher, is warranted for the period from August 28, 2008 to October 23, 2008. Outside of that period, however, an increased rating is not warranted. As explained above, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine where appropriate. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert, supra. Subsequent to February 1, 2016 The Veteran has been assigned a 10 percent disability rating for his skin condition, from February 1, 2016. The Board finds that, based on the evidence of record, a rating of 60 percent is warranted for this period. On February 1, 2016, the Veteran was seen at VA for his skin condition. At that time, testing showed the presence of bacteria that was resistant to the Veteran's medication and he was prescribed oral antibiotics. Subsequent VA treatment notes, dated March 2016, July 2016, October 2016, November 2016, January 2017 and February 2017, each show the continued, nearly constant, use of oral antibiotics. At the April 2017 hearing, the Veteran testified that he had recently discontinued the use of his latest prescribed antibiotic, but that he would likely be prescribed a different one soon, as his physician was working on a treatment plan for his skin condition. Such assertions are supported by the medical evidence of record, which shows different types of oral antibiotics being prescribed as his condition was treated. Thus, the Board finds that a constant, or near-constant, systemic therapy was being used to treat the Veteran's service-connected skin condition as of February 1, 2016. See 38 C.F.R. § 4.118, DC 7806; Warren, supra. In determining that an increased disability rating is warranted, the Board notes that the September 2016 VA examination report indicated that the only constant or near-constant treatment the Veteran underwent in the previous 12 months was a body wash regimen, which would not meet the criteria for an increased rating. However, the report is clearly contradicted by the multiple VA treatment records noted above, which document a continued course of treatment with oral antibiotics. Thus, the September 2016 examination report is given no probative weight on the question of whether the Veteran's skin condition meets the criteria for a higher disability rating. Therefore, based on the foregoing reasons and bases, the Board concludes that the preponderance of the evidence supports the award of a 60 percent rating for the Veteran's skin condition from February 1, 2016. In making this determination the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b). ORDER A disability rating of 30 percent for tinea cruris and folliculitis, from August 28, 2008 to October 23, 2008, is granted, subject to the law and regulations governing the award of monetary benefits. A compensable disability evaluation for tinea cruris and folliculitis, prior to February 1, 2016 and excluding the period from August 28, 2008 to October 23, 2008, is denied. A disability rating of 60 percent for tinea cruris and folliculitis, from February 1, 2016, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs