Citation Nr: 21000028 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-08 585 DATE: January 4, 2021 ORDER Entitlement to an initial rating of 60 percent for tinea cruris with atopic eczematoid dermatitis is granted. REMANDED Entitlement to an increased rating for residuals of a fracture of the left fifth toe, currently rated as noncompensable prior to April 25, 2012 and as 10 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Over the entire appeal period, the Veteran’s tinea cruris with atopic eczematoid dermatitis required constant or near constant systemic therapy. CONCLUSION OF LAW Over the entire appeal period, the criteria for entitlement to a 60 percent disability rating for tinea cruris with atopic eczematoid dermatitis, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7813-7806; Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of October 2011, September 2012, October 2013, April 2017, and June 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2015, a hearing was held before the undersigned. The Board remanded these claims in prior decisions of November 2015 and November 2018. The claims are now returned to the Board for additional appellate review. In part, a June 2020 rating decision allowed service connection for hypertension. This represents a complete grant as to the relief sought for the claim of entitlement to service connection for hypertension. The issue is no longer in appellate status. Entitlement to an initial rating in excess of 10 percent for tinea cruris with atopic eczematoid dermatitis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 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 is assigned for 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. A 60 percent rating is assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Federal Circuit held that 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court of Appeals for Veterans Claims (Court) held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs;” rather, compensation is available for “all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a 10 percent rating is assigned for at least one of the following: 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 assigned at least one of the following: characteristic lesions involving more than 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 assigned 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, an October 2013 rating decision allowed service connection for tinea cruris with atopic eczematoid dermatitis and applied a 10 percent rating. The Veteran appealed, seeking an increased initial rating. The Veteran’s skin disability is rated under Diagnostic Code 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 a hyphen. 38 C.F.R. § 4.27. Accordingly, the Veteran’s skin condition is evaluated under the rating criteria applicable to Diagnostic Code 7806. The Veteran was afforded a VA skin diseases examination in August 2013. Tinea cruris and atopic eczematoid dermatitis were diagnosed. The examiner found eczema affected from five to less than 20 percent of the Veteran’s total body area and it did not affect any portion of his exposed body area (face, neck and hands). Additionally, the examiner found skin infections affected less than five percent of the Veteran’s total body area and they did not affect any exposed body area. He observed, the Veteran’s skin condition was treated with constant or near constant use of a systemic medication. The use of topical corticosteroid treatment was not indicated. The examiner noted this skin condition did not cause scarring. A second VA skin diseases examination was provided in January 2017. This evaluation confirmed a diagnosis of tinea cruris with dermatitis. Dermatitis affected from five to less than 20 percent of the Veteran’s total body area. It did not affect any portion of his exposed body area (face, neck and hands). The Veteran’s skin disability was treated with constant or near constant use of a systemic medication. The use of topical corticosteroids was not indicated. The examiner noted a systemic manifestation (erythroderma) was associated with tinea cruris. The Board notes, the examiner listed additional skin diagnoses of tropical sprue and a benign neoplasm. Service connection is established for tropical sprue and this condition was evaluated in a separate VA nutritional deficiencies examination. The Veteran has not claimed that a benign neoplasm causally related to his active service or to his service-connected skin disability. These diagnoses are not relevant the claim now before the Board. The January 2017 evaluation also included a notation that the Veteran’s skin condition caused scarring and disfigurement. The examiner explained this finding referred to hyperkeratosis (thickening of the skin) scalp and ears. A separate VA scars evaluation was not provided. The Veteran was afforded a third VA skin diseases evaluation in September 2019. Tinea cruris and atopic eczematoid dermatitis were diagnosed. The Veteran was asymptomatic at the time of the examination. He reported, in hot and humid conditions, he experienced flare ups of a rash on his right buttock, anterior crotch, and right arm. The examiner noted, over the previous 12-month period, the Veteran used topical corticosteroids or other immunosuppressive medication for six weeks or more, but not constantly. No other treatment was used over this period. Dermatitis and dermatophytosis did not affect any portion of his body area on examination. A separate September 2019 VA scars evaluation was provided. The examiner found the Veteran did not have any scars. Over the appeal period, VA treatment records include multiple prescriptions for fluocinonide cream to be applied daily to rash and irritation in the Veteran’s scrotal area. A June 2013 VA urology clinic note documents a rash in the groin area. A September 2014 VA nursing assessment noted rash on the groin and arms. In May 2015, the Veteran’s primary care physician described an itchy rash of the torso which had been present for three weeks. In January 2016, a VA primary care note documented an excoriated rash on the lower extremities and other parts. A rash on the right elbow was noted in May 2016. A second medication, triamcinolone, to be applied twice a day to a rash, was prescribed in 2016 and 2017. In February 2013, the Veteran submitted a statement describing a current “irritable, excruciating, painful, itchy, and very embarrassing” skin condition. In March 2015, he testified, over many years, he experienced a rash on his bottom, arms, under his breasts, and on his sides. He recalled using creams, but not oral medications to treat the rash. He estimated the rash covers from 35 to 40 percent of his body from his hips and scrotum up to his neck. He asserted these outbreaks had caused scars. As a layperson, the Veteran is competent to describe his experience of a rash, as well as observable symptoms of pain and itching. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s claim was pending prior to the August 13, 2018 amendments to the rating criteria for skin disorders. Thus, the earlier rating criteria for skin disabilities and case law allowing topical treatments to be considered systemic treatment are applicable over the entire appeal period. See Johnson, supra. Initially, the Board finds the Veteran’s skin disability is appropriately rated based on his use of medications rather than under the rating criteria for scars and disfigurement. The Veteran testified that he has scars due to his skin condition. As a layperson, the Veteran is competent to report his experience of a rash and his perception of scars. See Jandreau, supra. VA examiners of August 2013 and September 2019 stated there was no scarring associated with his skin condition. The VA examiners are medical professionals and they are competent to evaluate whether scarring is associated with the Veteran’s skin condition. While, the January 2017 examiner marked a box indicated scars were present, he clarified that he had observed skin thickening. He did not complete an additional scar examination. Thus, the competent evidence is against finding scars and disfigurement are associated with this skin condition. The Veteran’s skin condition is appropriately rated based on the therapies used to treat it. The evidence establishes the Veteran’s tinea cruris with atopic eczematoid dermatitis has been treated with topical medications. VA medical professionals prescribed topical creams over many years and the Veteran testified that he used these medications. VA examiners of August 2013 and January 2017 found the Veteran’s skin condition was treated with constant or near constant use of systemic corticosteroids or other immunosuppressive medications. They did not indicate a regimen of topical treatment. The Board notes the September 2019 examination may document the skin condition is improving. The examiner observed the Veteran’s rash was asymptomatic at the time of the examination, but the Veteran remained prone to flare ups and had used medications for more than six weeks in the 12 months prior to the examination. It is not clear that any improvement will be sustained. Thus, resolving reasonable doubt in favor of the Veteran, his service-connected skin disability has required the constant or near constant use of systemic medications over the entire appeal period. A 60 percent rating is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating for residuals of a fracture of the left fifth toe, currently rated as noncompensable prior to April 25, 2012 and as 10 percent disabling thereafter, is remanded. In November 2018, the Board remanded the claim of entitlement to a compensable rating for a left fifth toe disability to obtain a new VA examination. This additional VA examination was provided in November 2019. A June 2020 rating decision allowed for an increased rating of 10 percent for the left fifth toe condition. However, the agency of original jurisdiction (AOJ) did not issue a supplemental statement of the case as to the denial of a rating in excess of 10 percent. See 38 C.F.R. § 19.31(b). The Veteran’s left fifth toe condition is rated under the hyphenated Diagnostic Code 5299-5284. VA regulations provide that conditions not listed in the rating schedule will be rated by analogy and coded with the first two numbers of the schedule provisions for the most closely related body part and “99.” 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 a hyphen. 38 C.F.R. § 4.27. In this instance, the hyphenated diagnostic code shows the Veteran’s left fifth toe condition is rated by analogy to “foot condition, other.” Under this diagnostic code, a maximum 50 percent rating is provided. 38 C.F.R. § 4.71a. The Veteran is presumed to be seeking the maximum benefit available unless he explicitly limits the scope of his appeal. See AB v. Brown, 6 Vet. App. 35 (1993). There is no indication the Veteran limited the scope of his appeal to a 10 percent rating or otherwise withdrew his appeal after the issuance of the June 2020 rating decision. Thus, a claim seeking a rating in excess of 10 percent remains on appeal. The Board cannot consider the merits of a higher rating until it ensures the Veteran has been afforded due process under VA regulation. As a result, the Board finds the Veteran’s appeal of the rating assigned for his left fifth toe disability must be remanded for the issuance of a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. A grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). Currently, the Veteran’s service-connected anemia is rated as 100 percent disabling over the entire appeal period. SMC, under 38 U.S.C. § 1114(s), has been allowed from May 1, 2014. The Veteran’s benefits may not be maximized across the entire appeal period and entitlement to TDIU and SMC prior to May 1, 2014 remains on appeal The issue of entitlement to TDIU remains inextricably intertwined with the remanded claim seeking an increased rating for the residuals of a fracture of the left fifth toe. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a supplemental statement of the case that addresses the issue entitlement to a rating in excess of 10 percent for a left fifth toe disability. 2. Readjudicate the issue of entitlement to a TDIU, to include whether SMC is warranted prior to May 1, 2014. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.