Citation Nr: 20003695 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 14-08 154 DATE: January 15, 2020 REMANDED Entitlement to a rating greater than 10 percent for tinea pedis from January 19, 2010 to October 11, 2012 is remanded. Entitlement to a rating greater than 30 percent from October 12, 2012 to June 6, 2016 is remanded. Entitlement to a rating greater than 10 percent for tinea pedis than 10 percent from June 7, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1991 to November 1991 and from February 2003 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Background Law VA amended the criteria for rating skin disabilities in August 2018. Claims pending on August 13, 2018, as here, may, however, be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). Under the pre-amended version of the rating criteria, Diagnostic Code (DC) 7806, which contemplates dermatitis or eczema, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating in warranted where at least five percent, but less than twenty percent, of the entire body, or at least five percent, but less than twenty percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Under the amended criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "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." DC 7806 continues to apply to dermatitis or eczema, but it is rated under the General Rating Formula for the Skin (GRFS). Under the GRFS, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: 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. A 60 percent rating is warranted for 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan, 16 Vet. App. 436, 442 (2002). Consequently, 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. Warren v. McDonald, 28 Vet. App. 194 (2016). In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that "systemic" is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the U.S. Court of Appeals for Veterans Claims discussed two ways that a treatment could be shown to be systemic: (1) The method by which the treatment works to treat the medical condition and (2) the side effects that are possible or actually experienced as a result of the treatment. Procedural History In January 2018, the Board noted that VA had examined the Veteran for this appeal in October 2012 and June 2016. In a December 2017 brief, the Veteran's representative argued that the VA examiners did not adequately assess his condition because they did not examine the Veteran during an active phase of his condition. The Board agreed that the October 2012 and June 2016 VA examination reports were inadequate. In this regard, although the examiners noted that the Veteran's condition was treated with medication, the examiners stated that the Veteran did not have any visible skin conditions and did not opine to the percentage of body parts affected by the disorder. The U.S. Court of Appeals for Veterans Claims has determined that, to the extent possible, VA medical examinations should be scheduled during active phases of skin disorders. See Ardison v. Brown, 6 Vet. App. 405 (1994) and Bowers v. Derwinski, 2 Vet. App. 675 (1992) (holding that "it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed). If the examination cannot be conducted at such time, it is imperative that the VA examiner review the Veteran's documented medical history so an opinion can be rendered as to the percentage of body parts that could be affected during an active phase. As such, the Board remanded for a new examination to be conducted, if possible, during an active phase of his tinea pedis. In its Remand directives, the Board stated: The examiner should report in detail all pertinent symptomatology and findings associated with the Veteran’s service-connected tinea pedis. All signs and symptoms necessary for rating the skin disorder under the current rating criteria should be reported in detail, to include the percentage of the entire body affected and the percentage of exposed area(s) affected. If the Veteran is not experiencing an outbreak at the time of the examination, the examiner should, to the extent possible, opine as to the percentage of the entire body and the percentage of exposed area(s) that could be affected, during an eruption or exacerbation based on consideration of the previous manifestations documented in his treatment records and on the Veteran’s own reports as to his history. VA examined the Veteran in September 2018. The examination is inadequate for two reasons. First, the examiner did not, as the Board ordered in January 2018, "opine as to the percentage of the entire body and the percentage of exposed area(s) that could be affected, during an eruption or exacerbation based on consideration of the previous manifestations documented in his treatment records and on the Veteran’s own reports as to his history." Second, the examiner did not discuss the Veteran's treatment under the topical vs. systemic rubric highlighted above. Also, because the Board's January 2018 Remand pre-dated the regulatory amendment, remand is also warranted for an examiner to, based on the amended regulation, opine retrospectively to assist the Board in evaluating the Veteran's tinea pedis. In particular, the Board needs to be able to appropriately classify his treatment as topical or systemic throughout the period on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea pedis with onychomycosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The VA examiner is asked to address the following: (a) Identify all medication used for treatment for the Veteran’s tinea pedis from January 19, 2010 to present and indicate whether each identified medication operates by affecting the body as a whole. (b) For each identified medication, indicated whether the treatment is more appropriately characterized as "topical therapy" or "systemic therapy" in accordance with prevailing medical understanding. (c) For each identified medication, indicate whether it is considered a corticosteroid or other immunosuppressive drugs, and if so, whether it operates by affecting the body as a whole in treating the Veteran’s tinea pedis. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.