Citation Nr: 21003165 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-00 206 DATE: January 19, 2021 ORDER From April 11, 2014, a disability rating in excess of 10 percent for tinea pedis of the bilateral foot and left hand is denied. From April 11, 2014, a compensable disability rating for onychomycosis is denied. FINDINGS OF FACT 1. From April 11, 2014, the Veteran’s tinea pedis was manifested by 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 and did not require more than topical therapy. 2. From April 11, 2014, the Veteran’s onychomycosis was manifested by less than 5 percent of the entire body and less than 5 percent of exposed areas affected and did not require more than topical therapy. CONCLUSIONS OF LAW 1. From April 11, 2014, the criteria for a disability rating in excess of 10 percent for tinea pedis of the bilateral foot and left hand have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7806. 2. From April 11, 2014, the criteria for a compensable rating for onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to August 2007. These matters came to the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing in July 2015; the transcript is of record. In an April 2016 decision, the Board granted a 10 percent disability rating for tinea pedis. The Veteran appealed the Board’s April 2016 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2017 Joint Motion for Partial Remand (JMPR) and Court Order, the Board’s decision was set aside and remanded for action consistent with the JMPR. In an August 2018 decision, the Board denied a disability rating in excess of 10 percent for tinea pedis. The Veteran appealed the decision to the Court. Pursuant to a March 2019 Joint Motion for Remand (JMR) and Court Order, the Board’s decision was set aside and remanded for action consistent with the JMR. In an August 2019 decision, the Board denied a disability rating in excess of 10 percent for tinea pedis for the period from September 1, 2007 to November 18, 2009; granted a 30 percent rating for tinea pedis for the period from November 19, 2009 to April 10, 2014; and, denied a compensable rating for onychomycosis for the period from September 1, 2007 to April 10, 2014. The Board remanded the tinea pedis and onychomycosis issues for the period from April 11, 2014. In October 2019, the Veteran filed a Motion for Reconsideration which was denied in October 2019. Increased Ratings Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of the disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 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 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 DC 7806, a noncompensable rating is assigned for 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 months. 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, DC 7806. For claims filed prior to August 13, 2018, the Court held that a systemic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. 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 noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. 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. Effective August 13, 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). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The fact that a particular symptom or manifestation may not be mentioned in the rating criteria does not in itself show an exceptional or unusual disability picture. In this regard, all schedular criteria are meant to consider the average impairment in earning capacity resulting from service-connected disabilities. See 38 C.F.R. § 4.1. The basis of the schedular criteria is one’s ability to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Viewed in this light, although a particular diagnostic code may provide for evaluations of a disability in terms of objective clinical data rather than in terms of symptoms, as is the case with dermatitis and eczema, the purpose of the schedular ratings is to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly with regard to how they affect earning capacity. See 38 C.F.R. §§ 4.1, 4.10, 4.21. Tinea pedis, bilateral foot and left hand In August 2019, the Board granted a 30 percent rating for tinea pedis from November 19, 2009 to April 10, 2014, due to the finding that the Veteran had been prescribed systemic therapy. The Board found that the staged period ended on April 10, 2014, as this was 12 months after his most recent prescription for systemic therapy. See 07/27/2015 Medical Treatment Record-Government Facility at 4. Thus, the question before this Board is whether a disability rating in excess of 10 percent is warranted for tinea pedis for any period from April 11, 2014. The Board finds that the preponderance of the evidence is against the assignment of a 30 percent rating or higher for any period from April 11, 2014 under the pre-August 13, 2018 regulations as the Veteran’s tinea pedis does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, nor 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. Specifically, a December 2019 C&P examination reflects the Veteran’s report of a recurrent rash to the hands and an almost constant rash to the feet; the rash sometimes itches and burns. He treats with topical medication, specifically Clotrimazole 1 percent cream and Nystatin powder for 6 weeks or more but use is not constant. The examiner checked the ‘No’ box with regard to whether the Veteran had any treatments or procedures other than systemic or topical medications in the past 12 months. The examiner found that his tinea pedis affects 5 percent but less than 20 percent of the total body area and affects 5 percent but less than 20 percent of the exposed area. The examiner described the tinea pedis affecting his feet as a scaly, peeling rash on the soles and sides of the feet, with a whitish macerated rash to the 3rd and 4th webspaces of both feet. Correspondence dated in December 2019 from the Veteran’s VA treating nurse practitioner reflects that he has been treated for tinea pedis and tinea unguium for several years. His tinea pedis affects 95 percent of the exposed areas of the feet. He is being treated for these disabilities with a slow or minimal improvement therapy due to his inability to take oral medications due to potential side effects on his already compromised liver. See 03/07/2020 Medical Treatment Record-Government Facility. A March 2020 C&P examination reflects that the Veteran constantly treats with topical treatment, specifically Clotrimazole and Nystatin powder, for tinea pedis and tinea affecting the left hand. The examiner found that his tinea pedis affects less than 5 percent of the total body area and less than 5 percent of the exposed area. While it is clear that the Veteran uses topical treatment, such as Clotrimazole and Nystatin powder, the record fails to demonstrate that these topical treatments affect the body as a whole in treating the Veteran’s tinea pedis. See Burton v. Wilkie, 30 Vet. App. 286 (2018). For example, there is no showing of side effects caused by the topical treatment. Additionally, the Board observes that the newly revised regulations in effect from August 13, 2018 do not enable an increased rating based on the facts of this case. The Veteran’s tinea pedis does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. In this regard, the Veteran’s treatment was limited to topical creams and powders that are administered through the skin. See 38 C.F.R. § 4.118(a). The Board acknowledges the Veteran’s belief that he is entitled to a higher rating for tinea pedis. However, the Board finds the Veteran’s arguments unpersuasive. The Veteran asserts that the plain meaning of “exposed area affected” is “the uncovered location of the disease claimed.” In support of his argument, the Veteran suggests that DC 7813 provides the specific area to be considered. For example, DC 7813 states “dermatophytosis . . . of feet, tinea pedis,” is to be rated under either DC 7800, 7801, 7802, 7803, 7804, 7805, or 7806 depending upon the predominant disability, which, in accordance with the Veteran’s theory, means that DC 7813 is indicating that the specific area to be considered when evaluating tinea pedis is the feet. As to the meaning of exposed, the Veteran suggests that exposed simply means “uncovered.” The Veteran, therefore, contends that a proper analysis for tinea pedis requires a determination of the percentage of the uncovered feet that are affected by the disease. See 04/05/2018 Correspondence at 4; see also 11/25/2020 Correspondence. Neither DC 7806 or 7813 contain notes, and there is otherwise no provision in the regulations that indicates that the “exposed area” language is determined by reference to DC 7813. This stands in contrast to other sections of the Rating Schedule that specifically indicate when a second DC must be consider when evaluating a disability. For example, DC 7800 note (2) indicates that DCs 6207, 6061, and 6063 should be considered when a facial scar affects the eyes. Likewise, DC 5001, indicates that sections 4.88b and 4.89 should be considered when evaluating inactive tuberculosis. No such reference is made in DC 7806. The fact that neither DC 7806 nor 7813 indicate that the “exposed area” is determined by reference to DC 7813 weight against the Veteran’s interpretation. See 38 C.F.R. § 4.118, DC 7806. Additionally, the Veteran argues that the phrase “exposed areas affected” as used in DC 7806 and “exposed body area” as used in the DBQ for skin diseases are not synonymous, and that any such reading would render provisions of DC 7806 superfluous, as many disabilities listed under DC 7813 would become noncompensable. As an example, the Veteran suggests that many veteran’s with tinea pedis would be excluded from receiving compensation because “[m]any of the tinea areas are smaller than 5 [percent] of the entire body.” See 03/14/2018 Correspondence at 4; see also 11/25/2020 Correspondence at 2. In making this argument, the Veteran fails to consider that under DC 7806 there are three avenues available to establish entitlement to a given disability rating, including: the percentage of the entire body that is affected by the disability, the percentage of the total exposed areas affected, and the frequency and nature of the treatment that the disability requires. Under the three-avenue approach, a veteran with tinea pedis that affects less than 5 percent of the entire body and less than 5 percent of exposed areas could still receive a 60 percent rating if the disability requires constant systemic therapy. See 38 C.F.R. § 4.118, DC 7806. In a June 2019 memorandum, the Veteran’s representative argues that the plain language of DC 7806 regarding “exposed areas affected” includes the Veteran’s feet. In rendering this argument, the representative defines “exposed areas” as “areas of the human body that are not covered, visible, and not sheltered or protected from the weather.” Further, the representative noted that “[n]either statutes, the Code of Federal Regulations, nor any VA rules or guidance have required . . . that the exposed areas affected must be exposed at all times.” By way of example, the representative notes that while the Veteran’s feet are covered for protection at certain times, so might the Veteran’s face, neck, and hands. He concludes by contending that the Veteran’s feet should be included as an “exposed area affected” and that, once included, he would be entitled to a 60 percent rating. See 06/28/2019 Third Party Correspondence at 3-4. The Board finds the representative’s argument uncompelling. First, while the representative is correct in noting that factors such as location, the season, and the weather will determine what areas of the body are visible, he fails to acknowledge that all parts of the body are exposed at some point (even if only to the Veteran), meaning, by extension of his logic, all parts of the body could be considered an “exposed area.” To define “exposed areas affected” in such a way would render the language meaningless in the context of DC 7806 as “exposed areas affected” would essentially come to mean the same as “entire body.” See 38 C.F.R. § 4.118, DC 7806. Additionally, the contention that the feet should be considered “exposed” runs counter to the specific facts of this case. Indeed, it was noted that the Veteran cannot even be barefoot in his own home, and that he cannot swim, skate, or participate in similar activities. By the representative’s own description, then, the Veteran’s feet are not in fact exposed under the ordinary meaning of the word but rather are near-constantly unexposed. Furthermore, the representative has framed his argument in a manner that is inconsistent with the purpose of the Rating Schedule. By asserting that factors such as location, the season, and the weather determine what parts of the body are exposed, the representative disregards the fact that the schedule of ratings is intended to represent the average impairment in earning capacity resulting from diseases in a civil occupation. See 38 C.F.R. § 4.1. Meaning that the proper framework for determining what parts of the body are to be considered “exposed,” should be the areas that are visible in an average civil occupational setting. As noted by the Veteran, 38C.F.R. §4.118 does not define the phrase “exposed areas affected.” However, the Veteran Benefits Administration (VBA) has defined “exposed areas” as the face, neck, and hands in the M21-1 Adjudication Procedures Manual. See M21-1, Part III, Subpart iv, Chapter 4, Section L-Skin Conditions, Topic 1.g. While the manual is not binding on the Board, it is instructive nonetheless. In sum, the Board finds against the Veteran’s aforementioned interpretations and holds that the definition of “exposed areas affected” is controlled here by the standard established by the VBA. The Veteran has also asserted that he should be awarded separate ratings for his tinea pedis, as it affects both feet. See 11/25/2020 Correspondence. The 10 percent rating in effect contemplates characteristic lesions involving at least 5 percent but less than 20 percent of the entire body or exposed areas affected, which contemplates the skin condition affecting his feet and left hand. The rating in effect contemplates how the skin condition affects the entire body and exposed areas affected, rather than specific extremities or areas of the body. If separate ratings were to be assigned based on a skin condition affecting specific parts of the body, then 0 percent/noncompensable ratings would be assigned as such would amount to characteristic lesions involving less than 5 percent of the exposed areas affected. Consideration of how the skin condition affects the entire body or exposed areas affected – the feet and hand - results in a higher rating for the Veteran. The Board has considered whether any other DCs related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that a higher rating would be warranted under a different diagnostic code. See 38 C.F.R. § 4.118. In this regard, the record does not indicate that tinea pedis has caused scarring. The Board has further considered whether a higher rating is warranted on an extraschedular basis. In December 2017, the Board concluded that the Veteran’s service-connected skin disability may present an unusual disability picture not contemplated by the ratings schedule and remanded the Veteran’s claim for referral to the Director, Compensation Service, for consideration of an extraschedular rating in excess of 10 percent for the Veteran’s skin disability. In February 2018, the Director issued an advisory opinion in the matter. See 02/22/2018 Miscellaneous C&P Correspondence at 1-2. It is noted that the Board is not bound by the Director’s opinion. Under the current version of DC 7806, the levels of evaluation turn solely on the amount of skin affected, as a percentage of exposed areas or of the body as a whole, and the method and regularity of treatment. DC 7806, like many diagnostic codes, is devoid of any reference to symptoms or manifestations. See 38 C.F.R. § 4.118. In contrast, the prior version of DC 7806 specifically contemplated exudation or constant itching, extensive lesions, ulceration, extensive exfoliation or crusting, and marked disfigurement. See 38 C.F.R. § 4.118. A review of the regulatory record indicates that VA adopted more objective criteria based on the extent to which the entire body or exposed areas are affected by the condition or on the treatment required, to ensure more consistent evaluations. See 67 Fed. Reg. 49591 (2002). The current rating criteria under DC 7806 is based on the presence of a skin infection or rash. As such, it is reasonable to conclude that DC 7806 contemplates any symptoms associated with such skin rash, even though the rating criteria do not explicitly reference such symptoms. In this case, for the period from April 11, 2014, the Veteran’s symptoms included itchiness and dry skin with sores on each foot and an intermittent rash on the hand. The Board finds that these symptoms are typical of a skin infection or rash and do not represent an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Rather, the Board finds that these symptoms are contemplated by DC 7806 even though the rating criteria does not specifically reference such symptoms. Accordingly, the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, the Board need not conduct the second step of the inquiry, namely whether there are “related factors” such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for tinea pedis for the period from April 11, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Onychomycosis, toes A separate 0 percent disability rating is in effect for onychomycosis, toes pursuant to DC 7806. The Veteran, through his representative, asserts that onychomycosis should be rated under DC 7804 as the disease more closely resembles scars than dermatitis. See 06/28/2019 Third Party Correspondence at 3-4. The Veteran contends that onychomycosis should be rated under DC 7804 because hardening and darkening of the toenails is more closely associated with scarring than dermatitis or eczema. The Board disagrees with the Veteran’s assertion that the symptoms of onychomycosis are analogous to scarring. The Board notes that onychomycosis is a fungal infection that, although chronic and recurring, can be treated without residuals, whereas a scar is a permanent mark left on the skin. Here, the evidence of record demonstrates that the predominant disability is DC 7806. The December 2019 C&P examination reflects that the Veteran has dark, discolored toenails. He treats with topical medication, specifically Clotrimazole 1 percent cream and Nystatin powder for 6 weeks or more but not constantly. The examiner checked the ‘No’ box with regard to whether the Veteran had any treatments or procedures other than systemic or topical medications in the past 12 months. The examiner found that his onychomycosis affects 5 percent but less than 20 percent of the total body area and affects 5 percent but less than 20 percent of the exposed area. The examiner observed that he has thick, dark discoloration of the toenails of the feet. Correspondence dated in December 2019 from the Veteran’s VA treating nurse practitioner reflects that he has been treated for tinea pedis and tinea unguium for several years. His tinea unguium affects 100 percent of the exposed areas affected for all toenails bilaterally. He is being treated for these disabilities with a slow or minimal improvement therapy due to his inability to take oral medications due to potential side effects on his already compromised liver. See 03/07/2020 Medical Treatment Record-Government Facility. A March 2020 C&P examination reflects that the Veteran constantly treats with topical treatment, specifically Clotrimazole and Nystatin powder for onychomycosis. The examiner found that his onychomycosis affects less than 5 percent of the total body area and less than 5 percent of the exposed area. In light of the above, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s onychomycosis does not more nearly approximate 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. Similarly, in consideration of the diagnostic criteria for the skin, effective August 13, 2018, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under those provisions because the Veteran’s onychomycosis does not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12-month period. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In this regard, the record does not indicate that onychomycosis has caused scarring. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for onychomycosis for the period from April 11, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.