Citation Nr: 18145989 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-38 041 DATE: October 30, 2018 ORDER A 60 percent rating for psoriasis and onychomycosis is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s skin disability, to include psoriasis and onychomycosis, most nearly approximated disability affecting more than 40 percent of the entire body throughout the appeal period. CONCLUSION OF LAW The criteria for a 60 percent rating for psoriasis and onychomycosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to August 2008, with service in Southwest Asia. His decorations include the Bronze Star Medal, among others. Due to some confusion on the Veteran’s part a timely substantive appeal was not submitted. However, VA appears to have waived the timing requirement of the substantive appeal and accepted the untimely substantive appeal and certified the issue to the Board. The Board will not disturb this decision. See Percy v. Shinseki, 23 Vet. App. 37, 46-47 (2009). Since the agency of original jurisdiction (AOJ) last considered the appeal, the Veteran submitted additional evidence in April 2017. Initial review of the evidence by the Board of Veterans’ Appeals (Board) is appropriate. See § 501 of the Honoring America’s Veterans Act, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule) 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. Service connection was granted in a March 2009 rating decision for psoriasis, rated 10 percent disabling, and for onychomycosis, rated noncompensable, effective September 1, 2008. In April 2015, the Veteran filed a VA Form 21-526EZ, and requested increases in the evaluations for onychomycosis and psoriasis, reporting that his skin condition steadily worsened since. A June 2015 rating decision increased the Veteran’s rating for psoriasis to 30 percent, effective April 3, 2015, and included onychomycosis in the single rating under Diagnostic Code 7816. See 38 C.F.R. § 4.118, Diagnostic Code 7816. The Veteran disagreed with the 30 percent rating and contended a 60 percent rating was warranted based on the total body area affected by his skin disorders. Initially, the Board notes the Schedule of ratings - skin was revised by a final rule during the appeal period, effective August 13, 2018. 83 Fed. Reg. 32,592-97 (July 13, 2018), as corrected at 83 Fed. Reg. 38663 (Aug. 7, 2018). As VA’s General Counsel held in a precedent opinion that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects, the Board will consider both the old and new regulations since August 13, 2018. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amendment provides Diagnostic Code 7816 be evaluated under the General Rating Formula for the Skin. In pertinent part, a 30 percent rating is warranted for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolent-A light (PUVA), or other immunosuppressive drugs for six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs over the past 12-month period. The revisions and additions also define systemic treatment as treatment administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin and provide for the combination of two or more skin conditions in accordance with 38 C.F.R. § 4.25 only if separate areas of skin are involved, if two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118(a)-(b). The previous version of Diagnostic Code 7816 (Psoriasis) similarly allowed a maximum 60 percent rating with more than 40 percent of the entire body affected or with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during a 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7816 (2017). Further, the Board notes that an October 2016 VA DBQ submitted by the Veteran’s dermatologist diagnosed unspecified dermatitis; however, the Board finds the Veteran’s skin disorder is properly evaluated under the criteria under Diagnostic Code 7816 (psoriasis) as an April 2017 private dermatologist explained that the diagnosis of dermatitis was erroneous and confirmed the prior diagnosis of psoriasis through biopsy. The Board concludes that the Veteran’s skin disorders most nearly approximate psoriasis affecting more than 40 percent of the entire body to warrant a 60 percent rating throughout the appeal period. As the evidence supports a finding that the Veteran’s skin disorder affected more than 40 percent of his total body area throughout the appeal period, the Board notes that the August 2018 revisions have no substantive effect on the facts of this particular case. Here, a May 2015 VA disability benefits questionnaire (DBQ) found psoriasis affected 20 to 40 percent of the total body area and treated with constant topical medication that was not a corticosteroid and onychomycosis affected less than 5 percent of the total body area and treated with oral medications that were not systemic corticosteroids or an immunosuppressive medication. The Board concludes that the evidence is at least in equipoise that the Veteran’s combined skin disorders affected more than 40 percent of his total body area in light of the contemporaneous private treatment record in March 2015 that found the Veteran’s skin disorder encompassed 40 percent of his total body area. Resolving doubt in favor of the Veteran, the Board finds the criteria for a 60 percent evaluation have been met as psoriasis affected about 40 percent of the total body area and onychomycosis affected additional surface area of less than five percent. Moreover, the other evidence of record supports a finding that the Veteran’s skin disability affected more than 40 percent of his total body area throughout the appeal period for a 60 percent evaluation under either set of criteria since August 13, 2018. Notably, an October 2016 VA DBQ submitted by the Veteran’s dermatologist found unspecified dermatitis affected more than 40 percent of total body area. The other evidence of record is consistent with the above. Specifically, April 2016 private treatment records noted the Veteran’s skin condition affected the abdomen, arms, back, buttocks, and legs, encompassed approximately 60 percent of the body surface area, and was treated by topical medication. An April 2017 treatment record also reported that psoriasis involved approximately 45 percent of the body. Further, the Veteran’s wife indicated he experienced progressively worsening skin rashes that impacted how he dressed and their relationship. As the diagnostic codes pertinent to this disability allow for a maximum 60 percent rating and the Board finds no other appropriate diagnostic code under which a higher rating could be warranted, the Board finds that a rating in excess of 60 percent is not warranted. In an April 2015 statement the Veteran contended that he should be awarded separate 60 percent ratings for psoriasis and onychomycosis. Initially, the Board finds that the evidence does not support a finding that the Veteran’s onychomycosis has ever affected 5 percent of the entire body or 5 percent of exposed areas such that a separate compensable rating could be awarded based on the area affected. See 38 C.F.R. § 4.118. Moreover, the medications the Veteran reported using for onychomycosis are antifungal medications and not like or similar to corticosteroids or immunosuppressive drugs. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 102, 425, 915 (30th ed. 2003). Specifically, “antifungal” is defined as suppressing the reproduction or growth of fungus, as opposed to “immunosuppressant” which is defined as suppressing immune responses and “corticosteroid” which is defined in part as suppressing immune responses. Thus, a separate compensable rating for onychomycosis cannot be awarded on the basis of treatment. The 60 percent evaluation under Diagnostic Code 7816 contemplates a skin disorder encompassing total body area affected by both psoriasis and onychomycosis, which is appropriate in this case. See 38 C.F.R. § 4.14 (the evaluation of the same disability or the same manifestation of disability under various diagnoses is to be avoided). The Board concludes the Veteran’s skin disability, to include psoriasis and onychomycosis, most nearly approximates a 60 percent rating under Diagnostic Code 7816 throughout the appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel