Citation Nr: 21000852 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-16 167 DATE: January 6, 2021 ORDER Entitlement to a compensable rating for a bilateral fungal infection of the feet is denied. FINDING OF FACT The Veteran’s service-connected bilateral fungal infection of the feet has required topical treatment and affects less than 5 percent of the entire body and less than 5 percent of exposed areas of the body. CONCLUSION OF LAW The criteria for a compensable rating for service-connected bilateral fungal infection of the feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to August 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The claim was previously remanded by the Board, most recently in June 2019. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a compensable rating for a bilateral fungal infection of the feet Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability demonstrates symptoms that warrant different ratings). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49,53 (1990). Furthermore, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s bilateral fungal infection of the feet is rated 0 percent disabling under Hyphenated Diagnostic Code (DC) 7813-7806. VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801,7802,7817,7819,7825, 7826, 7827,7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the regulations in effect at the time when the Veteran filed his claim in February 2011, Diagnostic Code 7806 provided the following: a noncompensable rating is warranted if the skin condition covers less than 5 percent of the entire body, or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period; a 10 percent evaluation is warranted if the skin condition covers 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; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period; a 30 percent evaluation is warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when 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 evaluation is warranted if the skin condition covers 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 are required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2008). Under the new regulations, effective August 2018, Diagnostic Code 7806 will be rated under a General Rating Formula for Skin, under which a noncompensable rating will be assigned if the skin condition covers less than 5 percent of the entire body, or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent rating will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) 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 will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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 will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. Alternatively, the disability can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7806. The Federal Circuit addressed the meaning of “systemic” and “topical” for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, 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. Id. at 1355. The Federal Circuit acknowledged 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Effective August 31, 2018, VA regulations explicitly state that for the purposes of the skin disability ratings, “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) (2018). The Veteran was afforded a VA examination in March 2011 at which time it was noted that the Veteran had tinea pedis and tinea unguis of both feet. At that time, the Veteran treated the fungal infection of the foot with topical lotion with only partial relief. The symptoms reported were discomfort and itching. The examiner noted that the treatment is neither a corticosteroid nor an immunosuppressive. Upon examination, there Veteran had discoloration of the nails of both hallux as well as 4th and 5th toe of right foot and 2nd toe of left foot. In the intertriginous areas between all of the toes, there was some scaling in moderate amounts. The examiner noted that less than 5 percent of the exposed areas and less than 5 percent of the total body area were affected. According to the October 2014 VA examination report, the Veteran reported that his skin condition has been the same since the prior VA examination. It was noted that he continued terbinafine ointment which was reportedly used constantly or near constantly. The examiner reported that the infection of the skin affected less than 5 percent of the total body area and none of the exposed body area. Upon examination, the examiner reported that the left foot as worse than the right with evidence of tinea pedis and onychomycosis with dry white scaly appearance over the soles of feet and in between the toes and thickened dystrophic nails. The Veteran also had a macerated area showing superficial erosion measuring 0.6cm by 0.3cm on the medial aspect of the left middle toe. The Veteran’s April 2017 treatment record generated by a foot-care clinic indicated that his bilateral fungal infection of the feet resulted in thickened and discolored toenails, dry and scaly skin, and macerations between toes, bilaterally. The treating practitioner prescribed him Spectazole cream, Lac-Hydrin moisturizing lotion, and Betadine solution. According to a disability benefits questionnaire DBQ completed in July 2017 by the same private examiner, the Veteran was noted to have tinea pedis, onychomycosis, as well as xerosis. The examiner noted that the less than 5 percent of the exposed area and less than 5 percent of the total body areas was affected. The examiner also noted that the Veteran suffered from hyperhidrosis and that the Veteran’s feet were very painful at times and flare-ups making him unable to walk. During the July 2017 hearing, the Veteran testified that he developed his bilateral fungal infection of the feet during his service in Panama. He further testified that, in 2014, he utilized Terbinafine ointment to treat his fungal infection of the feet, but that by July 2017, he was using a certain prescribed moisturizing lotion. The Veteran further clarified that his medical practitioner considered prescribing him a certain medication for internal consumption but, due to the Veteran’s liver condition, elected against prescribing that medication. The Veteran also testified that his fungal infection of the feet manifested by skinning and itchiness between the fourth and fifth digits of his feet, bilaterally, and these symptoms were spreading to the soles of his feet if he exercised in a gym or had his feet exposed to the sun. Pursuant to the December 2017 Board remand, in a January 2018 VA examination report, a VA examiner found that the Veteran’s bilateral fungal infection of the feet affected less than five percent of his entire body and less than five percent of the exposed areas. The January 2018 VA examiner also stated that Betadine was an antiseptic/disinfectant, and Lac-Hydrin was an “ammonium lactate” compound used for skin hydration, and thus established that neither Betadine nor Lac Hydrin contained a corticosteroid or other immunosuppressive drug. In a November 2019 addendum, the examiner noted that there is no corticosteroid or other immunosuppressive drug in the Spectazole or terbinafine creams. Further, according to the November 2019 addendum opinion, the VA examiner noted that the Veteran may have worsening of the tinea pedis in the summer months, but that should not cause additional functional impairment. The VA examination reports repeatedly state that the Veteran’s skin condition does not impact his ability to work. While the private clinician noted that the Veteran has severe flare-ups which cause severe pain as well as neuropathic pain from his diabetes, the November 2019 VA examiner opined that the Veteran has diabetes mellitus with peripheral neuropathy and he may be having pain due to the neuropathy and not the tinea pedis. The examiner also observed that he does not see why the Veteran would have any functional changes due to increased tinea pedis in his feet. Therefore, the record reflects that the Veteran’s foot pain is primarily attributed to his diabetic neuropathy and there is no support for the inference that any pain from the Veteran’s bilateral fungal infection of the feet affects his ability to walk. Additional VA and private treatment records reveal similar findings as those noted in the VA examination reports. While the Veteran often complained about itching, dryness, and scaling of his feet, there were times when no rash or fungal infection was appreciated and the Veteran denied any complaints about his feet. The Board has also considered whether a higher rating is warranted under a different DC. However, there is no other DC under which the Veteran could get a compensable rating. See Diagnostic Code 7800-7 899. Although the private clinician noted that the Veteran has hyperhidrosis, it was unclear whether this was in reference to his feet as other VA treatment records note that Veteran’s complaints of dryness and findings of hypohidrosis. In any event, there is no evidence that he is unable to handle paper or tools because of moisture. The Rating Schedule provides a specific 0 percent rating when able to handle paper or tools, such as in this case. Therefore, a compensable rating is not warranted under DC 7832. Having carefully reviewed the evidence of record, the Board finds that Veteran’s complete disability picture for the entire duration of the appeal period does not warrant a compensable rating. The Veteran’s symptomatology consists of characteristic lesions involving less than 5 percent of the entire body affected and less than 5 percent of exposed areas of the body. The evidence of record does not show that the Veteran’s bilateral fungal infection of the feet ever manifested as characteristic lesions covering more than 5 percent of the entire body or more than 5 percent of exposed areas affected; or required intermittent systemic therapy for any period during the past 12-month period. Given that the duration and coverage requirements have not been met, the Board finds that a higher rating is not warranted under the criteria of DCs 7806. The Veteran’s own statements would not support such a finding. Therefore, a compensable disability rating is denied. The Veteran has not raised any other issues regarding his service-connected bilateral fungal infection of the feet, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for the bilateral fungal infection of the feet. In denying any higher rating, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.