Citation Nr: 1804350 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-16 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased rating for a skin disease (previously rated as skin disease - psoriasis (also claimed as Athlete's feet)), rated as non-compensably disabling prior to July 20, 2017, and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Pendleton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1966 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans' Law Judge at an October 2015 travel board hearing and a transcript of this hearing has been associated with the record. The Board notes that this matter was remanded on two prior occasions, in January 2015 and June 2017 for further development; to fulfill the Veteran's request for a hearing and to obtain an adequate VA examination, respectively. During the pendency of the appeal, the RO assigned a 10 percent rating for the skin disability, effective since July 20, 2017. Thereafter, the case was returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Prior to July 20, 2017, the Veteran had skin disease involving less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy was required during the past 12-month period. As of July 20, 2017, the Veteran's skin disease affected at least at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent but less than 20 percent of the exposed areas and no intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks in the past 12-month period. CONCLUSION OF LAW The criteria for a compensable rating for a skin disease prior to July 20, 2017 and a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code (DC) 7816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to a compensable rating for his service connected skin disease. He further contends that his skin disease has worsened over the years, to the point that it affects least 5 percent, but less than 20 percent of his entire body, meeting the scheduler criteria for a 10 percent disability rating. He uses topical medications constant, near constantly to mitigate his symptoms. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has been diagnosed with tinea pedis (sometimes referred as tinea corpus or tinea cruris), a skin disease, rated by analogy to the schedular rating for psoriasis under DC 7899-7816. DC 7816 provides that a 0 percent (non-compensable) disability rating is warranted for psoriasis affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, with no more than topical therapy required over a 12 month period. A 10 percent disability rating is warranted for psoriasis affecting at least 5 percent but less than 20 percent of the entire body, or when at least 5 percent but less than 20 percent of exposed areas, or; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted for psoriasis affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is warranted for psoriasis affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118. This is the maximum rating under DC 7816. The Board also notes that Johnson v. McDonald, 27 Vet. App. 497 (2016) and Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), pertain to the 38 C.F.R. § 4.118, DC 7806, and are applicable to the Veteran's claim for a higher rating for psoriasis under DC 7816, as the criteria for the diagnostic codes are similar. Superficially, in Johnson v. Shulkin, the Federal Circuit determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is not inclusive of topical corticosteroids. 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit explained that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit further 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." 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. To determine the Veteran's disability rating, the Board thoroughly reviewed the evidentiary record. A staged rating is appropriate because as the facts of the case fail to show distinct periods where the service-connected disability exhibited symptoms of different levels of severity. Id. Indeed, many of his treatment records indicate ongoing problems and treatment with his skin disease; however the Veteran's skin condition covered less than 5 percent of his body with no signs of worsening until July 2017. Specifically, private treatment records from The Payne and Rice Clinic, Inc. reflect occasional visits to refill medication for recurring tinea pedis. (See March 2012 Medical Treatment Records (MTR)). He sought treatment for tinea covering his groin and lower body during April 2009, October 2010, and July 2011 visits. Id. 5, 7, 15. On each occasion, his physician prescribed a topical cream; lotrisone cream, which is a combination of betamethasone, and clotrimazol. Id. In an accompanying letter, the physician indicated that he has treated the Veteran for over 30 years and on numerous occasions, the Veteran has been treated for chronic, re-current (sometimes disabling) rash. Id. at 1; see also September 2011 Third Party Correspondence). However, the record only reflects three (3) visits. Likewise, VA records also fail to indicate signs of significant worsening. January 2008 VA records affirm the Veteran has a service connected skin condition. (See May 2008 MTR pg. 4). However, the Veteran's skin was consistently observed to be within normal limits, having no lesions, rashes or bruising except for his groin rash under treatment. (See August 2010 MTR pg. 4 and May 2012 MTR pg. 1, 2). He reported having a history of a skin lesion on his left forearm in a January 2012 visit, but made no further complaints. (See May 2012 MTR at 3, 6, and 7). In furtherance his appeal, the Veteran was afforded four VA examinations; three of which indicate little to no change in his condition. The first examination was conducted in May 2009, where the examiner affirmed the Veteran's tinea pedis disease. The Veteran admitted to having no exudation, ulcer formation, shedding or crusting and described his symptoms as occurring intermittently, as often as once per month. He was initial prescribed clotrimazole 2x2 weeks, which is a topical antifungal. The examiner estimated that his skin lesion was 0 percent of the exposed area and the lesion coverage consisted of approximately one (1) percent of the whole body. His lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. The examiner opined that the effect of the condition on the Veteran's daily activity was minimal. The second examination had similar findings. In June 2010, the examiner noted that his condition was being treated with a topical corticosteroid cream, lotrisone 2x2. On examination, the skin lesion was 0 percent in the exposed area and the skin disease covered approximately three (3) percent of the body. Akin to the May 2009 examination, the examiner opined that his skin lesions were not associated with systemic disease, did not manifest in connection with a nervous condition, and the effect of the condition on the Veteran's daily activity was minimal. The third examination report issued in September 2012 provided the Veteran was being treated with clotrimazole cream, which he used for a total duration of less than 6 weeks within the past 12 months. The examiner noted there was no indication of scaring or systemic manifestation due to his skin disease (such as fever, weight loss or hypoproteinemia). The Veteran did not use any treatment or procedures to control the disease. The examiner opined that the veteran had no debilitating episodes within the past 12 months and his skin condition did not affect his ability to work. Yet, during the October 2015 Travel Board hearing, the Veteran alleged that his tinea had worsened; not only affecting his feet and groin area, but now sometimes spreading to his waist. In light of these new contentions, the Board remanded the matter to afford the Veteran with another VA examination as the prior examination had been conducted 5 years prior. In July 2017, the Veteran underwent the fourth examination, where he asserted ongoing issues of infection of feet as well as the groin area extending to buttocks as far as the waist and anus and along interior upper thighs. On examination, the examiner confirmed that his skin disease now affected that 5 to 20 percent of the Veteran's body was covered with the disease and he was being treated with topical medicated creams, including 1 percent clotrimazole and 0.5 percent betamethasone every day as needed. The Veteran reported using these medications constantly or near constantly. The RO re-adjudicated the claim and issued an August 2017 rating decision, finding that the Veteran's skin disease was 10 percent disabling, effective July 20, 2017. The Board notes that a higher evaluation of 30 percent is not warranted at any point within the appellate period because there is no evidence that shows the Veteran's skin disease covers 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas are affected. An evaluation of 60 percent is also not warranted at any point within the appellate period because there is also no evidence that his skin disorder affects more 40 percent of the entire body or more than 40 percent of exposed areas. While the Board acknowledges that the Veteran in July 2017 reports of constant use of corticosteroid creams, those treatments do not constitute systemic therapy such as corticosteroids or other immunosuppressive in that the medication does not affect his body as a whole. See Johnson v. Shulkin, No. 2016-2144, 2017 (Fed. Cir. July 14, 2017); and DC 7816. Based on the foregoing, the Veteran is not entitled to a compensable rating until July 20, 2017, when the evidence corroborates that his skin disease affects greater than 5 percent, but less than 20 percent of his body, consistent with DC 7816 schedular criteria of a 10 percent disabling. ORDER Entitlement to an increased rating for skin disease, rated as non-compensably disabling prior to July 2017 and 10 percent disabling thereafter is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs