Citation Nr: 21000393 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-01 453 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for tinea versicolor is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s tinea versicolor affects less than five percent of the entire body and none of exposed areas and has not involved treatment from corticosteroids or other immunosuppressive drugs approximating systemic therapy. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1973 to March 1986. The Veteran’s awards and decorations for his service include a Combat Action Ribbon, among others. These matters come to the Board of Veterans’ Appeals (Board) on appeal from July 1987 and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Philadelphia, Pennsylvania. The Board previously remanded the instant matters for additional development in November 2016 and August 2018, specifically to obtain updated VA treatment records, any identified private treatment records and Social Security Administration (SSA) records. Updated VA treatment records and SSA have been obtained. A March 2019 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf; the Veteran did not respond to this letter. The Board therefore determines that there was been substantial compliance with its previous remands with regards to the claim for an increased rating for tinea versicolor. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating – Tinea Versicolor The Veteran generally contends that he is entitled to a higher rating for his tine versicolor as his symptoms are more severe than contemplated by the currently assigned rating. Specific argument in support of this claim has not been provided. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. The Veteran’s tinea versicolor is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806. 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). Under the new 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.” Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the new criteria, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent 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 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 six 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. Under the former criteria, a 10 percent rating is warranted for at least five percent, but less than 20 percent, of the entire body, or at least five 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 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. 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. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also 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. In Burton v. Wilkie, 30 Vet. App. 286 (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. The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”). Turning to the evidence of record, the Veteran was afforded a VA examination in August 1986. At that time, in pertinent part, he reported that he started getting white splotches on his skin that itched a lot during active service and that when he reported to sick call, they told him it was due to being out in the sun. He reported he went to sick call numerous times during his active service, and that the white spots never went away but that in the wintertime they do not itch, and in the summer they itch. He reported that he had numerous white spots all over his skin, all over his body. They appeared to be concentrated mostly in the upper arms, back, and chest. Upon physical examination, the Veteran was shown to have numerous white macules that were rounded, oval, varying in size from one centimeter to two, three, or four centimeters in size. The lesions were scattered over the upper trunk, upper arms neck, and abdomen primarily with a few scattered in the axilla, groin, thighs, and genitalia. Of record is an October 1988 private treatment record submitted by Dr. E.B. At that time, Dr. E.B. indicated that the Veteran was seen in regard to lesions on his arms and trunk that were diagnosed as tinea versicolor. Dr. E.B. noted that the condition as worse in the summer, and was manifested with severe itching especially with perspiration and exfoliation and that the condition is debilitating in the long run, especially in the summer. Dr. E.B. noted that antihistamines were not effective, and some soothing lotions were helpful with partial symptomatic relief for short periods of time. The Veteran was afforded another VA examination in June 2017. At that time, the examiner diagnosed tinea versicolor, with onset of the symptoms in 1977 to 1980. The Veteran reported that the condition had stayed the same, that he had few symptoms in the winter and that there was more itching and pale spots on his back during spring and summer. The tinea versicolor did not cause scarring or disfigurement of the head, face, or neck, he did not have benign or malignant skin neoplasms and did not have any systemic manifestations due to tinea versicolor. The Veteran treated with topical corticosteroids and other topical medications with a duration of six weeks or more, but not constant. He did not have any other treatments or procedures other than topical medications in the past twelve months. The Veteran did not have any debilitating or non-debilitating episodes in the past twelve months. Upon physical examination, the Veteran’s tinea versicolor was shown to affect less than five percent of the total body area and none of the exposed area. The examiner noted tinea versicolor that was manifested with very slightly hypopigmented macules on the upper back. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner noted that the tinea versicolor did not impact his ability to work. A review of the record shows that the Veteran receives treatment at the VA Medical Center and from private providers for various disabilities, to include his tinea versicolor. A review of the treatment notes of record does not show the Veteran to have symptoms of a skin disability worse than those reported at the VA examinations of record. For the foregoing reasons, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for tinea versicolor. In this regard, the Board finds that while the Veteran was prescribed topical cream for treatment of his skin disorder, there is no evidence that his treatment resulted in systemic therapy to support a higher rating. The use of the topical corticosteroid prescribed to the Veteran was applied to less than five percent of his entire body for six weeks, but not constant. This more closely approximates “topical therapy” as the corticosteroid used pertains to a certain area of the Veteran’s skin and affects only the area to which it is applied. Such treatment has not been administered on a large enough scale such that it affected the Veteran’s body as a whole. As noted above the affected area is less than five percent of total body, and none of the exposed area. Accordingly, an initial rating in excess of 10 percent is not warranted for tinea versicolor under the old or new criteria pertaining to the skin. The Veteran’s belief that he is entitled to higher ratings for his tinea versicolor is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. Ultimately, on objective examination, his tinea versicolor was shown to affect less than five percent of his total body, and none of the total exposed area, and did not require the use of systemic therapy. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to itching, the Board notes that such symptoms are contemplated under the current rating. The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran’s service-connected tinea versicolor; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disorder is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (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). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his tinea versicolor. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his initial rating claim decided herein and, consequently, no further consideration of such is necessary at this time. Accordingly, the Board finds that a preponderance of the evidence is against an initial rating in excess of 10 percent for tinea versicolor, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection – Cervical Spine and Lumbar Spine Disorders The Board notes that the Veteran was afforded VA examinations for his cervical spine and lumbar spine disorders in December 2010 and June 2017. The December 2010 VA examiner opined that the Veteran’s cervical spine and lumbar spine disorders were less likely than not related to his active service. Specifically, the examiner found that the service records did not reflect significant back or neck conditions and noted that most spondylosis is an age related condition, although there are cases resulting from significant trauma which did not occur in this case, at least not during service. Therefore, the examiner opined the Veteran’s cervical and lumbar conditions were not likely secondary to the low back strain or pain experienced during service. The June 2017 VA examiner opined that the Veteran’s cervical spine disorder was less likely than not incurred in or caused by active service. Specifically, the examiner noted that records did not document an in-service injury or condition likely to result in or predispose to development of neck pathology or the diagnosed conditions; and thus, the examiner concluded that his cervical spine disorder was not related to his military service. Further, the examiner noted that the reports did not mention neck pain and the Veteran’s own physicians date the onset of his neck condition to 2002. Additionally, the examiner noted that neck pain in 18 to 31 year old is most often muscular in nature and that muscular neck pain does not result in or predispose to development of the currently diagnosed degenerative neck condition. With regard to the Veteran’s lumbar spine disorder, the June 2017 VA examiner opined that such disorder was less likely than not incurred in or caused by active service. Specifically, the examiner noted that there was no evidence of chronicity of care, and the Veteran denied recurrent back pain on subsequent examination, including at his separation examination. Further, the examiner noted that the records did not document an in-service injury or condition likely to result in or predispose to development of back pathology or the diagnosed condition; and thus, the examiner concluded that his lumbar spine disorder was not related to his military service. Lastly, the examiner noted that the presence of persistent back pain from service does not and cannot purport to determine the cause of such back pain; and additionally, the examiner noted that back pain in 18 to 31 year old is most often muscular in nature; and muscular back pain does not result in or predispose to development of the currently diagnosed degenerative back condition. A July 2017 VA addendum opinion found that the Veteran’s cervical spine disorder was less likely than not incurred in or caused by active service. This July 2017 addendum opinion is identical to that of the previous June 2017 VA opinion of record. The Board finds the VA medical opinions inadequate to decide the claims. In this regard, the VA opinions did not adequately address the Veteran’s lay statements and contentions regarding the onset and continuity of his symptoms. Specifically, the examiners did not address the Veteran’s contentions that his back symptoms began during active service due to the rigors of his drill instructor duties, and did not address the Veteran’s complaints of, and treatment for, back pain during service. Accordingly, the Board concludes that the Veteran should be afforded new VA examinations to determine the nature and etiology of his cervical spine disorder and lumbar spine disorder. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed cervical spine and lumbar spine disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: Is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine and/or lumbar spine disorders had their onset during any period of service, or is otherwise related to such period of service? The examiner should be sure to address the significance, if any, of the reports of low back pain found in the Veteran’s service treatment records. See e.g., September 1976, February 1977, and June 1984 service treatment records. The examiner should also address the Veteran’s contentions that the rigors of his service as a drill instructor caused his spine symptoms, to include pain. In offering such opinions, the examiner should consider the Veteran’s statements. The examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate 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.