Citation Nr: 21003476 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-19 040 DATE: January 21, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for bilateral tinea pedis is denied. REMANDED Entitlement to an extraschedular rating for bilateral tinea pedis is remanded. FINDING OF FACT Tinea pedis did not affect 20 percent or more of the entire body or exposed areas, or require systemic therapy by immunosuppressants or medications that could be likened to immunosuppressants during any portion of the period on appeal. CONCLUSION OF LAW The criteria for an entitlement to an increased rating in excess of 10 percent for bilateral tinea pedis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.14, 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June to December 2002, and from March 2003 to August 2003. This matter is before the Board of Veterans’ Appeals (Board) on his appeal from the June 2013 and November 2013 Department of Veteran’s Affairs (VA) Regional Office (RO) rating decisions. The factual and procedural history accrued in this matter has been set forth in detail in the Board’s June 2020 decision and requires no recitation. Therefore, it shall suffice to state that, effective May 2006, the Veteran has been service connected for bilateral tinea pedis, initially rated as noncompensable. In December 2011, the Veteran applied for an increased rating for his bilateral tinea pedis, and the RO denied his claim in the above-noted rating decisions. Having unsuccessfully challenged those denials before the RO, the Veteran filed a Notice of Disagreement in August 2014. In February 2016, the RO issued a Statement of the Case (SOC). In April 2016, the Veteran filed a Substantive Appeal, requesting a Board hearing. In July 2019, he testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Following the hearing and upon examination of the claims file, the undersigned VLJ determined that the Veteran’s most recent examination of his feet was conducted in January 2016, and the January 2016 VA examiner noted changes in his skin condition. Therefore, the undersigned VLJ remanded the Veteran’s claim for an increased rating for his bilateral tinea pedis for an addendum VA examination. However, the RO’s process of scheduling the Veteran’s addendum examination was deficient on due process grounds. Thus. while the Veteran failed to appear for his addendum VA examination, and the RO issued a Supplemental SOC (SSOC) denying his claim for an increased rating for bilateral tinea pedis based on his failure to appear, the undersigned VLJ issued the June 2020 decision re remanding the Veteran’s claim for an addendum VA examination. In August 2020, the Veteran was provided with such an examination. In addition, the RO obtained the Veteran’s outstanding private treatment records and associated his outstanding VA treatment records with the claims file. The August 2020 VA examination, consistent with the Veteran’s VA and private treatment records, as well as with his prior VA examinations, indicated that the Veteran’s bilateral tinea pedis had its onset in 2002 and manifested by cracking and swelling of the skin on his feet, as well as by foot pain that felt like “burning, and pins and needles,” and by pruritus, which affected his toes and plantar surfaces of his feet. The Veteran’s private treatment records also demonstrated that his tinea pedis manifested by raised skin, foul smell, and yellowish drainage. The combined record showed that, to manage his tinea pedis, the Veteran has been continuously treated with Fluconazole (an azole antifungal, in the form of oral tablets), Meloxicam (an oral nonsteroidal anti-inflammatory drug (NSAID)), Diclofenac (another NSAID, in a gel form), Phytoplex powder (consisting of minerals and petrochemicals), and Terbinafine (an antifungal in the form of a cream). In addition, during a flare-up period in 2014, the Veteran was treated for seven days with Bactrim (a combination of two antibiotics administered in the form of oral tablets) and for 30 days with Griseofulvin (an oral antifungal). In September 2020, based on the aforesaid evidence, the RO issued a rating decision and an SSOC granting a 10 percent rating for the Veteran’s tinea pedis effective the date of his increased rating claim. Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability is viewed in relation to its history and the limitation of activity imposed by the disability, 38 C.F.R. § 4.1, and examination reports are interpreted in the same fashion and from the point of view of the claimant who is working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In addition, any reasonable doubt is resolved in the claimant’s favor. 38 C.F.R. § 4.3. Further, consideration is given to a longitudinal picture of the veteran’s disability to determine if the assignment of separate ratings for separate periods of time, i.e., the practice known as “staged” ratings, is warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s tinea pedis is rated under 38 C.F.R. § 4.118, DC 7813. Relevant here, during the appeal period, changes were made to § 4.118, to include DC 7813. Specifically, effective August 13, 2018, VA amended its regulations governing skin disabilities. One of the goals of the amendment was to ensure that the claims pending prior to the amendment’s effective date would be considered under both the old and new rating criteria and rated under whichever criteria would be more favorable to the claimant. 83 Fed. Reg. 32592 (July 13, 2018). Under the pre-August 2018 criteria, DC 7813 provided for a noncompensable rating where less than five percent of the veteran’s entire body or less than five percent of his/her exposed areas was affected, and no more than topical therapy was required during the previous 12-month period. A 10 percent rating was assigned where there was involvement of 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, or the veteran required an intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the previous 12-month period. A 30 percent rating was assigned for onychomycosis affecting 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, or for onychomycosis that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the previous 12-month period. A 60 percent rating was assigned for onychomycosis affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for onychomycosis requiring constant or near constant systemic therapy by corticosteroids or other immunosuppressive drugs during the previous 12-month period. 38 C.F.R. § 4.118. Under the post-August 2018 rating criteria, a noncompensable percent rating is assigned when there is no more than topical therapy required over the previous 12 month period and characteristic lesions involving less than five percent of the entire body affected, or there are characteristic lesions involving less than five percent of exposed areas. A 10 percent rating is assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected, or for intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen and ultraviolet (PUVA) therapy, or other immunosuppressive drugs (collectively, immunosuppressive treatment) required over the previous 12 month period. A 30 percent rating is assigned for characteristic lesions involving 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, or systemic therapy by an immunosuppressive treatment for a total duration of six weeks or more, but not constantly, over the previous 12-month period. A 60 percent rating is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas, or constant or near-constant systemic therapy by an immunosuppressive treatment over the previous 12-month period. 38 C.F.R. § 4.118 (August 13, 2018). Further, prior to the August 2018 amendments, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) distinguished between “systemic” therapy and “topical” therapy, holding that systemic therapy was that affecting the whole body, whereas topical therapy meant treatment pertaining to a particular surface area that affected only the area to which the therapy was applied. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit, however, pointed out that a topical corticosteroid could be administered to a large enough scale to affect the body, as a whole, thus meeting the definition of systemic therapy. Id. Moreover, elaborating on the Johnson analysis, the U.S. Court of Appeals for Veterans Claims (Court) observed that, when determining whether a topical treatment for a skin disorder constituted systemic therapy, it must not only be determined whether the topical treatment operated by affecting the body as a whole, but also whether the given treatment was “like” a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286, 294-295 (2018). After the August 2018 amendments, systemic therapy has become defined as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is a treatment that is administered through the skin. 38 C.F.R. § 4.118 (August 13, 2018 Here, all of the Veteran’s VA examinations, as well as his private and VA treatment records, demonstrate that – during any portion of the period on appeal – his tinea pedis affected less than five percent of his total body area and no exposed area. Further, while the Veteran’s treatment with Meloxicam, an oral NSAID, qualifies as systemic, neither Meloxicam nor any other antifungal or NSAID medication that he has been treated with, either constantly or temporarily (for the maximum period of four and a half weeks) qualifies as an immunosuppressant or could be likened to an immunosuppressant, and deemed to affect his whole body. Hence, regardless of whether the pre-August 2018 criteria or the post-August 2018 criteria is applied, the Board is without a basis to find that the Veteran’s bilateral tinea pedis warrants a rating in excess of 10 percent during any portion of the period on appeal on a schedular basis. That said, VA regulations also provide that, if an exceptional case arises in which the schedular ratings are inadequate to rate a veteran’s symptoms, a consideration of an “extraschedular” rating may be contemplated. 38 C.F.R. § 3.321 (b)(1). Such a consideration is discussed below. REASONS FOR REMAND Under 38 C.F.R. § 3.321 (b)(1), the Under Secretary for Benefits or the Director of Compensation Service (collectively, Director) is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Veteran’s tinea pedis warrants only a 10 percent rating during the entire period on appeal under DC 7813. However, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology, the Board must determine whether his disability picture qualifies as exceptional because it exhibits other related factors, e.g., “marked interference with employment.” 38 C.F.R. § 3.321(b)(1). In this case, the record shows that the Veteran’s tinea pedis manifested by pain, neurological sensations, yellowish drainage, and foul smell. Further, the Veteran’s tinea pedis caused him to take two to four weeks off work, thus interfering with his employment as an electrician at the time when he was employed. Moreover, the record demonstrates that the Veteran has not been employed as an electrician due to his inability to stand for prolonged periods of time because of his tinea pedis, and he is currently unemployed. In addition, the record shows that the Veteran is required to ambulate with an assistive device, a cane. In sum, the Veteran’s symptomatology, assessed in toto, markedly exceeds the 10-percent criteria set forth in DC 7813, even though his symptomatology does not lend itself to a higher rating under DC 7813 or any other DC. Thus, the Board finds that the evidence presents an exceptional disability picture, which may cause an additional interference with the Veteran’s employment. Accordingly, under § 3.321(b)(1), the Veteran’s claim should be referred for consideration of an extraschedular rating. The matters are REMANDED for the following action: 1. Request the Veteran to submit a detailed statement elaborating on how his tinea pedis has affected his employment throughout the entire period on appeal. Avail the Veteran to a reasonable period of time to reply. 2. Regardless of whether the Veteran replies to the inquiry detailed in Step 1, refer the Veteran’s claim to the Director for consideration of an extraschedular rating for the Veteran’s bilateral tinea pedis. Such a referral should be accompanied by a notation that, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there is logically no guidance as to the specific rating that should be assigned in any particular case. Kuppamala v. McDonald, 27 Vet. App. 447, 443, n.7 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996). 3. All relevant electronic records contained in the claims file, to include this Remand order, and any records obtained pursuant to this Remand order, should be provided to the Director for review. 4. The Director should issue a memorandum addressing whether, at any point during the period on appeal, the Veteran has been entitled to a rating in excess of 10 percent for his bilateral tinea pedis on an extraschedular basis. The memorandum should specifically consider and discuss the Veteran’s contentions pertaining to the impact of his tinea pedis on his employment and daily life. 5. If any benefit sought on appeal remains denied, an SSOC should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. 6. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 7. The law requires that all claims that are remanded by the Board of Veterans’ Appeals for additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.