Citation Nr: 18140763 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 13-07 670 DATE: ORDER The reduction of the rating for the Veteran’s tinea versicolor from 60 percent to 30 percent was not proper, and the 60 percent rating is restored effective July 1, 2012. FINDINGS OF FACT 1. An April 2012 rating decision reduced the evaluation for the Veteran’s tinea versicolor from 60 percent to 30 percent effective July 1, 2012 after meeting all due process requirements. 2. The Veteran’s tinea versicolor did not show actual improvement under the normal circumstances of life and work at the time of the reduction. CONCLUSION OF LAW The reduction in the rating for the Veteran’s tinea versicolor from 60 percent to 30 percent effective July 1, 2012 was not proper. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.118 Diagnostic Code (DC) 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1976 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in June 2018. The Veteran contends that restoration of a 60 percent rating is warranted for his skin condition. See June 2018 Board hearing transcript, pp. 4-5. He testified that the condition effects both legs extending up to his groin area, as well as his on his chest, back, and arms and he has been that way since 2012. He contends that his treatment has included venlafaxine, topical corticosteroids, hydrocortisone sylvanisol, clobetasol, and flurandrenolide. Id., pp. 5-6. The Veteran contends that even though treatment temporarily has decreased some of the lesser inflamed sites to some degree at times, he is still vulnerable to the next occurrence which seems to have a pattern of being worse than the last. See December 2014 Veteran’s statement; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In a November 2011 rating decision, the RO proposed to reduce the Veteran’s evaluation for his service-connected tinea versicolor from 60 percent to 30 percent. The reduction was accomplished in an April 2012 rating decision and effective July 1, 2012. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran’s tinea versicolor is currently rated under DC 7813-7806. 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; the additional code is shown after the hyphen. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 13, 2008. See 83 Fed. Reg. 32,592 (July 13, 2018). “VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” 83 Fed. Reg. 32,592 (July 13, 2018). The former DC 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Under the former DC 7806, a 60 percent rating applies where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. A 30 percent rating applies where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; 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. Under the new rating criteria, disabilities rated under DCs 7813 and 7806 are to be evaluated under the General Rating Formula for the Skin. A 60 percent is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. A 30 percent rating is warranted for at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The new rating criteria specifically states that systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. See 38 C.F.R. § 4.118(a). The Veteran was initially awarded a 60 percent rating for tinea versicolor based upon a December 2009 VA examination, which showed that 90 percent of his body was affected. The examiner noted that symptoms occur constantly. Treatment within the past twelve months included clobetasol, which the examiner noted was a systemic immunosuppressive. Other treatment included ketoconazole, which is a topical corticosteroid. The Veteran had not used UVB, intensive light therapy, PUVA or electron beam therapy. The examination revealed tinea versicolor on the chest, back, arms, legs, buttocks, groin, feet, and head. The examiner noted that the effect on the Veteran’s usual occupation and daily activity was chronic itching. The reduction was based upon a June 2011 VA examination. At the examination, the Veteran reported tinea versicolor on his legs, chest, arms, and groin. He described the symptoms occurring intermittently, as often as every two months, with each occurrence lasting an unknown amount of time. He reported five attacks within the past year and that his ability to perform daily function during flare-ups was limited as there is severe scratching and itching. His treatment included hydrocortisone fluconazole three times per week, which is a topical medication with a side effect of severe burned skin and UVB therapy used constantly for the past 12 months with side effects of burned shin, intense itching, redness, and peeling. However, the examiner found tinea versicolor only on the limbs and determined the skin legion covered zero percent of exposed area and six percent of the whole body. The examiner noted no effect on usual occupation or daily activities. A September 2011 VA treatment record shows treatment with zytec, lidex ointment, emollients, doxepin, and accolate, and that the Veteran was on the waitlist for light treatment and there was discussion of taking soritane. The treatment record notes scattered hyperpigmented macules on the Veteran’s arm, chest, abdomen, back, distal legs, and right lateral ankle. A November 2011 VA treatment record continued to show treatment with oral doxepin for itching and topical fluocinonide. A January 2012 VA treatment record shows that the Veteran received UVB light treatment in August and September 2010, but had experienced burning, followed by desquamation and that the Veteran had tried two course of prednisone with no response. The plan was to switch from zyrtec to claritin, continue doxepin at night, increase clobetasol ointment, try cordran tape, and continue generous emoliants. He continued to be on the waitlist for light treatment. The skin condition continued to affect the Veteran’s arm, chest, abdomen, back, distal legs, and ankles. August 2012 through February 2013 VA treatment records show no improvement in the Veteran’s condition. An August 2012 treatment record shows hyperpigmented patches on the Veteran’s bilateral cheeks, in addition to the hyperpigmented patches on his body, arms, and legs. Treatment included zyrtec, clobetasol, and emollients. In February 2013, the Veteran discontinued doxepin as he did not feel that it was helpful. He reported that he felt nothing had helped in the past. A September 2013 letter from a VA treating physician noted that he treated the Veteran since July 10, 2013 for chronic eczema versus lichen planus versus psoriasis of the right leg and punctate hyperketosis of the palms. He noted that the Veteran had failed to respond to multiple treatments and there were no other options for treatment. VA treatment in April 2014 continued to show a rash on legs and upper body with flares. A November 2014 VA treatment record noted discoloration mostly on his legs, but also on his right and left cheeks, and that no treatment had been effective. A November 2014 disability benefits questionnaire (DBQ) showed treatment with a systemic corticosteroid, prednisone, for less than six weeks; treatment with topical corticosteroids for six weeks or more, but not constant; and UVB treatment in July 2010 for less than six weeks. Dermatitis was noted covering 20 to 40 percent of total body area and it was noted that chronic irritation impacts the Veteran’s ability to work. An April 2015 VA treatment record notes that the Veteran had numerous therapies over the years and none of been of any help in treating his skin condition. In January 2016, the Veteran had a flare up of his skin condition on both lower extremities and in May 2018, the Veteran had a flare up on his neck. The August 2018 DBQ shows diagnoses of eczema and tinea versicolor covering 20 to 40 percent of the total body area and no exposed area. The examiner notes that intense itching interferes with ability to concentrate, affects his self- image, is esthetically unpleasing, and socially debilitating. The examiner further noted that it has a negative impact on the quality of life, leisure activities, social life, and emotional well-being. Although the record shows that there may have been some improvement in the Veteran’s condition at times, the Board finds that there has not been sustained improvement under the normal circumstances of life and work. The Veteran continues to experience flare-ups, despite multiple treatments. Resolving doubt in the Veteran’s favor, the 60 percent rating for tinea versicolor is restored effective July 1, 2012. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel