Citation Nr: 21003986 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-06 798 DATE: January 25, 2021 ORDER A disability evaluation in excess of 10 percent for tinea corpora of the scalp and body is denied. FINDINGS OF FACT 1. The Veteran’s tinea corpora of the scalp and body has not affected 20 to 40 percent of the entire body or exposed areas affected and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of at least six weeks during any 12-month period. 2. The preponderance of the evidence is against supporting any scars or characteristic disfigurement of the head, face, and neck due to the service-connected tinea corpora of the scalp and body. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for tinea corpora of the scalp and body have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1998 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal in August 2017, June 2019, and May 2020 for further development which has since been completed. A disability evaluation in excess of 10 percent for tinea corpora of the scalp and body is denied The Veteran seeks a rating in excess of 10 percent for tinea corpora of the scalp and body. The appeal period before the Board begins on September 5, 2007, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); see September 2008 VA Form 21-4138, Statement in Support of Claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found ─ a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 23, 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)) and effective August 13, 2018 (see 83 Fed. Reg. 32592 (July 13, 2018)). The Veteran filed his claim for an increased rating in September 2008. However, those revisions are applicable only to applications for benefits received by VA on or after October 23, 2008 or when specifically requested by the Veteran to be considered. See 73 Fed. Reg. 54708 (September 23, 2008). The Board further notes that diagnostic codes 7813 and 7806 were not revised in any substantive manner with the October 23, 2008 revisions. Pre-October 23, 2008 Rating Criteria Diagnostic Code 7813 is for dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris). This DC is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. DC 7806 is for dermatitis or eczema; a 10 percent rating is warranted where the skin disability 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 the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; by systemic therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. August 13, 2018 Rating Criteria VA amended the criteria for rating skin disabilities effective from August 13, 2018. Under the rating criteria in effect on August 13, 2018, disabilities rated under DC 7813 (which includes DC 7806) are to be evaluated under the General Rating Formula for the Skin, which is largely duplicative of the prior rating criteria. However, the new rating criteria, effective August 13, 2018, specifically states that 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. 38 C.F.R. § 4.118(a). Under the General Rating Formula for the Skin, 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. The preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the tinea corpora of the scalp and body. The Board notes that while the Veteran has been awarded separate disability evaluations related to his tinea corpora of the scalp and body condition, the only one on appeal, and discussed below, is the tinea corpora condition. A November 2008 VA examination report stated that the Veteran had a 3 centimeter by 3 centimeter round macular area on his scalp but was not using any treatment at that time. The treatment was topical antifungal cream. The examiner did not find any scarring or disfigurement of the head, face, or neck. A May 2009 VA treatment record reflected complaints of a rash on his head where he shaved. He was given a cream to apply but reported that it did not help his symptoms. A November 2015 VA treatment record showed he reported being diagnosed with athlete’s foot and a toenail fungus. He was prescribed clotrimazole cream for his diagnosed tinea cruris. An October 2016 record showed the Veteran requesting an antifungal powder spray for his “jock itch and toes” as it was getting worse. The July 2012 VA examination report stated that the Veteran’s tinea corporis disorder had spread from his scalp, arms, and legs, to his face, groin, and feet. The disorder covered less than 5 percent of his total body area and no part of the exposed area; and he was treated with topical antifungal cream for 6 weeks or more but not constant use in the prior 12 months. The disorder did not cause scarring or disfigurement of the head, face, or neck. The Veteran’s co-worker, C.O., submitted a statement asserting that the Veteran has a long history of suffering outbreaks of a skin condition that caused him to miss a lot of workdays. See November 2014 correspondence. The Veteran reported that his skin condition has gotten worse over the years and that he has been on EpiPen injections, oral corticosteroids, Atarax, Zantac, Zyrtec, Hydroxyzine, and minocycline, along with usage of topical creams. See November 2014 correspondence. At the April 2015 VA examination, the examiner noted that the Veteran had been treated with oral or topical medications in the past 12 months for his skin conditions, but none were used for the tinea corpora of the scalp or body condition. The examiner noted that he had mild tinea pedis but “no exam findings consistent with” tinea corporis or tinea cruris and that he was not being treated at that time for the tinea pedis at the time. The examiner observed that the Veteran had skin peeling mild maceration of the interdigital tissue without evidence of secondary bacterial infection. The December 2015 VA examination report reflected diagnoses of dermatitis or eczema, tinea, chronic urticaria, rosacea, and intertrigo; the examiner did not note the percentage of the body or exposed areas affected by his tinea corpora condition. The January 2018 VA-contracted examination report stated that the Veteran had asymptomatic tinea corporis of the scalp and body, tinea unguium, and asymptomatic tinea cruris. He reported using antifungal miconazole 2% powder daily for his jock itch (tinea cruris) and was taking oral terbinafine for a fungal infection of his toenail. The examiner noted constant or near-constant use of the medication in the past 12 months. The examiner stated that the tinea cruris is a new diagnosis and separate from the tinea corporis. The rationale is that even those they are both a fungal infection, one does not cause the other, as the location of the fungal infection gives the diagnosis. Pursuant to the June 2019 Board remand, the RO attempted to reach the Veteran to schedule for a VA examination in December 2019; however, he was not reachable to confirm a time, and thus, the examination was canceled. Upon return of the appeal, the Board indicated that since two separate skin disorders were service-connected, it was necessary to separate out exactly which symptoms and treatment corresponded to the tinea corpora condition. As such, the appeal was remanded again. In June 2020, a VA examiner provided a medical opinion on the Veteran’s service-connected tinea corpora of the scalp and body condition. The examiner noted that since September 5, 2008, the Veteran has not had any scars or disfigurement of the head, face, or neck, as a result of the service-connected tinea corpora of the scalp and body disorders. The examiner explained that after a review of the record, there was no medical documentation to support any such scar or disfigurement resulting from the tinea corpora condition; the examiner referenced the January 2018 VA contracted examination report that noted the tinea corporis disorder was asymptomatic. In an addendum opinion that same month, the examiner further explained that due to the nature of the tinea corporis condition, it can resolve, then recur, and/or intermittently flare up. Despite the noted medical documentation in the record, it appeared that there were no appreciated lesions or flare-ups. Thus, the affected areas can be reasonably different at different times, from one examination to another. Based on the last available documentation, the affected areas involved less than 5 percent of the entire body based on VA treatment records. The examiner noted that the January 2018 report did not find any tinea lesions, and thus, the exposed areas affected by the tinea corpora condition was 0 percent. Moreover, the examiner indicated that the Veteran used a topical antifungal therapy to treat the condition, and as such, it was not a topical corticosteroid, and that he has not used any systemic therapy. Tinea is not treated with corticosteroid or immunosuppressive therapy. The Veteran’s private treatment records did not address the tinea corporis condition but did discuss his other skin conditions. Private disability benefits questionnaires (DBQs) dated in October 2014, November 2014, December 2014 DBQs received) pertain to other service-connected of urticaria, acne, and allergic skin conditions. In both the former and revised rating criteria for disabilities rated under DCs 7813 and 7806, a higher 30 percent rating is warranted when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. At no time since the revised rating criteria was evidence presented indicating that 20 to 40 percent of the entire body or of the exposed areas was affected by the tinea corpora of the scalp and body condition. The November 2008 examiner found a 3 by 3 centimeter round macular area on his scalp. The July 2012 examiner found that the disorder covered less than 5 percent of his total body area and no part of the exposed area. The April 2015, December 2015, and January 2018 VA examination and VA-contracted examination reports were negative on findings consistent with the disorder or found that the tinea corpora condition was asymptomatic. Moreover, the June 2020 examiner reviewed the evidence and explained that based on the last available documentation, the affected areas involved less than 5 percent of the entire body. As such, the Veteran’s symptoms more nearly approximate the current 10 percent rating under DC 7813-7806. Under DC 7806, a higher 30 percent rating is also warranted when systemic therapy is required for a total duration of six weeks or more in the past 12-month period. The pre-2018 regulations do not contain a definition of topical or systemic, or topical or systemic therapy. However, systemic is defined by Dorland’s Illustrated Medical Dictionary 1865, 1940 (32d ed. 2012) as pertaining to or affecting the body as a whole. Comparatively, topical is defined as pertaining to a particular surface area, as a topic anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. The examiners did not describe any prescriptions as systemic therapy when discussing the tinea corpora condition. Rather, the evidence indicated that use of the prescribed antifungal cream was localized only to the affected areas and did not affect his body as a whole. There was also no indication that the method by which the treatment works, or of any side effects of the treatment cause the treatment to be classified as a systemic therapy. Thus, topical antifungal cream is not considered systemic under the former rating criteria. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). As a result, a higher 30 percent rating is not warranted under the pre-August 2018 criteria. Under the revised rating criteria, the evidence does not show that the Veteran has required systemic therapy for six weeks or more (including oral antibiotics or use of retinoids as applicable under the revised rating criteria effective August 13, 2018). The Board finds the June 2020 opinion (where the examiner explained that the Veteran used a topical antifungal therapy to treat the condition, and as such, it was not a topical corticosteroid, and that he has not used any systemic therapy) probative. Tinea is not treated with corticosteroid or immunosuppressive therapy. There has been no evidence to indicate otherwise, and thus, a higher rating is not warranted under the revised criteria. In sum, a higher 30 percent rating under the former or revised rating criteria for DC 7813-7806 is not warranted. While the more recent rating criteria governing the tinea corpora of the scalp and body condition specifically contemplate the use of medication, the Board has not denied an increased rating based on the ameliorative effects of the Veteran’s topical medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board acknowledges the Veteran’s report and C.O.’s statement regarding the severity of his skin condition. They are competent to report observable skin symptoms. However, on a closer look, the Board finds that the skin condition discussed in those statements were relate to his other service-connected skin disorders of urticaria, acne, and allergic reactions, and thus, is not applicable to the current appeal, as he is already compensated under a different diagnostic code for those manifestations. See 38 C.F.R. § 4.14. The Board has also 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 for which he has not already been service-connected for. Specifically, the examinations of record have not shown scarring or disfigurement of the Veteran’s head, face, or neck as due to his tinea corpora of the scalp and body condition. See 38 C.F.R. § 4.118. In conclusion, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for tinea corpora of the scalp and body; thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.