Citation Nr: 21061658 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 08-34 056 DATE: October 4, 2021 ORDER An initial rating in excess of 10 percent for the service-connected dermatophytosis, tinea pedis, onychomycosis, and psoriasis is denied. REMANDED Entitlement to an effective date earlier than July 13, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran's service-connected skin disability does not cover 20 percent or more of the entire body or exposed body areas and has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more at any point during the period on appeal. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for the service-connected dermatophytosis, tinea pedis, onychomycosis, and psoriasis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes (DCs) 7806, 7813, and 7816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1968 to September 1969. This case was most recently before the Board of Veterans' Appeals (Board) in July 2020. At that time, the Board remanded the Veteran's increased rating claim for dermatophytosis, tinea pedis, and onychomycosis as being intertwined with a claim for service connection for a skin condition of the back. On remand, the Regional Office (RO), via a June 2021 rating decision, granted the Veteran service connection for psoriasis (claimed as skin condition of the back) and combined the noncompensable rating assigned for psoriasis with the service-connected dermatophytosis, tinea pedis, and onychomycosis, effective November 28, 2007. In so doing, the RO noted that these dermatological disorders were rated as 10 percent disabling based on the signs and symptoms of all the involved skin conditions. As he is now service-connected for all of these skin disorders throughout the entirety of the appeal period, symptoms of all are to be considered in this decision. As an additional matter, the Board notes that the Veteran's representative submitted a letter in which he requested to withdraw representation in December 2020. The letter indicates that the Veteran was sent a copy of that correspondence. However, an attorney may not withdraw representation of a veteran after an appeal to the Board has been filed and it has been certified to the Board absent a showing of good cause on motion. 38 C.F.R. § 20.6(a)(2). As good cause was not provided for the attorney's request to withdraw representation, the Board continues to recognize him as the Veteran's representative. Initial Increased Rating Greater Than 10 Percent For Service-Connected Dermatophytosis, Tinea Pedis, Onychomycosis, & Psoriasis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has been assigned an initial rating of 10 percent for his service-connected dermatophytosis, tinea pedis, onychomycosis, and psoriasis throughout the period on appeal. Skin disabilities are rated according to the schedule of ratings for the skin contained in 38 C.F.R. § 4.118. Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Claims pending prior to the effective date will be considered under both the old and new schedules, and whichever schedule is more favorable to the Veteran will be applied. For claims filed on or after the effective date, only the new schedule will be applied. Because the Veteran's claim for service connection giving rise to the initial rating for his skin disability was filed on November 28, 2007, the Board will consider both schedules. Prior to August 13, 2018, DC 7813 provides compensation for service-connected dermatophytoses, including ringworm of the body (tinea corporis), head (tinea capitis), feet (tinea pedis), beard area (tinea barbae), nails (tinea unguium), and inguinal area (jock itch, tinea cruris). 38 C.F.R. § 4.118. Such disorders are to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. Id. Thus, the Veteran's rating was initially assigned pursuant to DC 7806, and has remained as such since that time. At the outset and in the interest of brevity, the Board notes that the Veteran's service-connected skin disability has not predominantly caused painful or unstable scarring or disfigurement of the head, face, or neck at the level of severity contemplated by DCs 7800 through 7805. No VA examiner has determined that the Veteran has painful or unstable scars and or disfigurement of the face in the form of scars. There was no tissue loss or other characteristics of disfigurement. Thus, DCs 7800, 7801, 7802, 7803, 7804, and 7805 are inapplicable in this case. DC 7806 provides compensation for service-connected dermatitis or eczema. 38 C.F.R. § 4.118. Prior to August 13, 2018, a noncompensable rating is provided where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12 month period. Id. A 10 percent rating is provided where: (i) 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 are affected; or (ii) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration less than six weeks during the past 12-month period. A 30 percent rating is provided where: (i) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or (ii) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is provided where: (i) more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or (ii) constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Id. Effective August 13, 2018, DC 7806 states that dermatitis or eczema are to be rated under the General Rating Formula for the Skin. This General Rating Formula provides that 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: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. Id. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (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. Id. A 30 percent rating is provided for 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. Id. A 60 percent rating is provided for 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. Id. As such, in this case, both prior to and from August 13, 2018, a rating in excess of 10 percent for the Veteran's service-connected skin disability requires a minimum of 20 percent of the entire body or exposed area affected, or systemic therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The Federal Circuit noted that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit further explained 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.'" Id. The types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs," but are instead available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet. App. 194, 197 (2016). The Board notes that the rating decisions granting service connection for the Veteran's skin conditions specify that the Veteran's service-connected dermatophytosis, tinea pedis, and onychomycosis are located on his feet and toenails and that his service-connected psoriasis is located on his back. No other skin conditions or affected areas are service-connected. Thus, the evidence pertaining to the skin of his feet and back and his toenails will be relevant for determining whether a rating in excess of 10 percent is warranted for his service-connected skin disability. Here, however, the evidence does not support a rating higher than that already assigned for his service-connected skin disability. Turning to the relevant evidence of record, on April 6, 2010, the Veteran sought VA treatment for itching of his back for the prior three months. He had an erythematous papular rash to his back. He was diagnosed with dermatitis, likely atopic, and given hydrocortisone ointment. The Veteran underwent a July 2010 VA general medical examination. At this time, he reported having a rash on his back which had been present for 23 years. He treated the condition with a rash ointment. On examination, the examiner found signs of dermatophytosis, tinea pedis, and onychomycosis, located on the bilateral feet and toenails. The condition had characteristics of exfoliation, crusting, hyperpigmentation of less than six square inches, and abnormal texture of less than six square inches. There was no ulceration, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, or limitation of motion. The lesions covered zero percent in the exposed area, and five percent relative to the whole body. There were no scars. The examiner did not note any findings of signs of a rash on the Veteran's back at this time. The Veteran underwent another VA general medical examination in June 2011. At this time, he reported having been diagnosed with dermatophytosis, tinea pedis, and onychomycosis with an unknown onset. He reported symptoms of a skin condition on his back which caused itching. He had no exudation, ulcer formation, or crusting. He stated that his symptoms were constant and that he had had the following treatment within the prior 12 months: diabetic, blood pressure, and prostate pills. The examiner then wrote that, "the medication is a systemic corticosteroid." However, this notation appears to relate to the Veteran's prostate pills, as no medication was noted as being used to treat his skin disability. The examiner further noted that the Veteran reported he had not used UVB, intensive light therapy, PUVA or electron beam therapy for his condition. On examination, the examiner found no signs of skin disease (including any acne, chloracne, scarring alopecia, alopecia areata or hyperhidrosis) and no scars. The examiner noted that the Veteran's skin condition was asymptomatic at this time. The Veteran underwent a VA skin diseases examination in May 2019. The examiner noted in the medical opinion that the Veteran had no skin conditions noted on his back on this examination. The examiner also noted in the examination report that the Veteran's tinea pedis had completely resolved and no longer required treatment of any type. The Veteran had a current diagnosis of onychomycosis, and he reported a longstanding history of toenail fungus. He had not been treated with medication or had any treatments or procedures other than systemic or topical medication in the prior 12 months for any skin condition. On examination, the examiner found that the Veteran's visible characteristic lesions of his skin condition covered less than five percent of his total body area and zero percent of the exposed area. He did not have a skin condition without any visible characteristic lesions at the time of the examination. The skin lesions were described as discolored and dystrophic changes in toenails, but were non-visible. The examiner concluded that the Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck; and there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his skin disability. The examiner further remarked that there was no diagnosis of a skin condition of the Veteran's back because there were no findings, signs, and/or symptoms to support a diagnosis. As to the Veteran's established diagnosis of dermatophytosis, tinea pedis, and onychomycosis, the examiner noted that the diagnosis had changed and there was no further Athlete's foot (tinea pedis), but did still have some toenail onychomycosis. The Veteran had no physical disabilities due to his onychomycosis. In January 2021, the Veteran underwent another VA skin diseases examination to further determine the nature of his claimed skin condition on his back. The examiner diagnosed the Veteran with psoriasis. The Veteran reported the condition having onset in 2000 when he began to experience constant itching at the middle of his back. He reported having sought treatment at a VA Medical Center in Atlanta, and having been then-diagnosed with a fungal infection, and that the condition had progressed/worsened since that time. He was still experiencing constant itching on his back, and treated it with a topical cream, Terbinafine HCL 1% cream. The examiner noted that this was a topical medication and had been used on a constant/near-constant basis in the prior 12 months. The Veteran had not had any treatment or procedures other than systemic or topical medication in the prior 12 months for any skin condition. On examination, the Veteran's psoriasis appeared as tiny red bumps on his lower back. It covered less than five percent of his total body area and less than five percent of the exposed area. The examiner noted that the Veteran's psoriasis did not cause scarring or disfigurement of the head, face, or neck and that there were no other pertinent physical findings, complication, conditions, signs and/or symptoms related to this diagnosis. The Veteran underwent another VA skin diseases examination to determine the severity of his dermatophytosis, tinea pedis, and onychomycosis in May 2021. The examiner noted that the Veteran still had current diagnoses of dermatophytosis, tinea pedis, and onychomycosis. The Veteran reported the symptoms of these conditions as dry, cracked, and itchy skin between his toes, as well as discoloration of his toenails, which were hard, thick, and brittle. He reported having treated the conditions with anti-fungal creams, and did not report any other type of treatment. He was still using antifungal creams for his symptoms, and reported that the conditions had remained of the same severity since their initial onset in 1968. The examiner did not find that any of these skin disorders had resolved, and noted that the Veteran had treated them with topical antifungal medication in the prior 12 months, with a duration of six weeks or more, but not constant. The Veteran had not had any treatments or procedures other than systemic or topical medication in the prior 12 months for these conditions. Examination demonstrated that the Veteran's tinea pedis and dermatophytosis were manifested by fungal infections of both feet with flaking of interdigital spaces between toes, scaling and mild erythema, covering 10 percent of his total body and zero percent of the exposed area. His onychomycosis was manifested by dry, brittle nails with yellow patches, covering 5 percent of total body area ad zero percent of the exposed area. The examiner noted that none of these skin conditions caused scarring or disfigurement of the head, face, or neck and that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's dermatophytosis, tinea pedis, and onychomycosis. The Veteran's VA treatment records have been reviewed, but do not contain evidence that his service-connected skin conditions affected a greater percent of his total body or exposed areas than shown on VA examinations during the appeal periodnor do they show that the conditions were treated with systemic therapy at any time. The Veteran has not submitted any lay statements asserting otherwise. The weight of the relevant evidence is against a finding that the Veteran's service-connected skin disorder is manifested in symptoms affecting 20 percent of his entire body or exposed areas, or has required systemic therapy at any time during the period on appeal. Although the June 2011 VA examiner noted that the Veteran was taking a systemic corticosteroid, such has not been shown to have been taken to treat his skin conditions. All other VA examiners stated that the Veteran had treated with no more than topical creams, and he conceded this treatment history to the examiner, according to the May 2021 VA examination report. As to the percentage of areas affected by the Veteran's dermatophytosis, tinea pedis, onychomycosis, and psoriasis, even if the Board were to consider only the highest percentages assigned by VA examiners during the appeal period, the evidence does not show that 20 percent of the Veteran's total body area or exposed area have been affected. The highest percentages of affected areas for these conditions are as follows: 10 percent of the total body area for tinea pedis and dermatophytosis (per May 2021 VA examination); five percent of total body area for onychomycosis (per May 2021 VA examination); and less than five percent of total body area for psoriasis (per January 2021 VA examination). Combining these percentages amounts to a finding of less than 20 percent of the Veteran's total body area being affected by his service-connected skin conditions. Thus, as the Veteran's service-connected skin disorder has not required systemic therapy at any time during the period on appeal and have, at most, affected less than 20 percent of the total body area or exposed area, a rating in excess of 10 percent is not warranted. Further, all potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating currently assigned for the Veteran's disability. Schafrath, 1 Vet. App. at 589. Other potentially applicable diagnostic codes include DC 7813 for dermatophytosis and DC 7816 for psoriasis, which provide identical results as those provided under DC 7806, the DC which has been assigned. As such, the Veteran's claim for an initial rating in excess of 10 percent for the service-connected dermatophytosis, tinea pedis, onychomycosis, and psoriasis is denied. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating requires medical findings that are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim and that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to an effective date earlier than July 13, 2010, for the award of service connection for PTSD The 2020 Board Remand directed the RO to issue a Statement of the Case (SOC) on the issues of entitlement to an initial rating in excess of 50 percent for the service-connected PTSD and entitlement to an earlier effective for the grant of service connection for PTSD. The RO issued an October 2020 SOC on the increased rating issue only. As such, the RO did not comply with the July 2020 Remand directive as to the earlier effective date issue. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As such, the Board has no recourse but to remand this issue again to ensure that the previously requested development is completed. Id. Accordingly, this matter is REMANDED for the following action: Issue an SOC pertaining to the claim for an earlier effective date earlier than July 13, 2010 for the grant of service connection for PTSD so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.