Citation Nr: 21062823 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-46 477 DATE: October 12, 2021 ORDER A compensable rating for dermatophytosis prior to October 19, 2015, is denied. A rating in excess of 30 percent for dermatophytosis since October 19, 2015, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from October 1968 to May 1970. 2. Prior to October 19, 2015, dermatophytosis was manifested by subjective complaints of periodic breakouts on feet and fingers and itching; objective findings included no more than topical therapy during any 12-month period and less than 5 percent of the entire body and less than 5 percent of the exposed area were affected. 3. Since October 19, 2015, dermatophytosis has been manifested by subjective complaints of blisters, webbing, flaking, and itching; objective findings include constant or near-constant treatment with topical corticosteroids and between 20 and 40 percent of the entire body affected. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for dermatophytosis prior to October 19, 2015, were not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.118, Diagnostic Code (DC) 7806 (2020). 2. The criteria for a rating in excess of 30 percent for dermatophytosis since October 19, 2015, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.118, DC 7806 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2019, the Board denied a compensable rating prior to October 19, 2015, and granted a rating of 30 percent thereafter. The Veteran appealed the decision to the Veterans Claims Court. In a February 2020 Joint Motion for Partial Remand (JMPR), the Court Clerk remanded the issue to consider whether topical corticosteroid use might be considered systemic therapy. The matter was remanded by the Board in July 2020, February 2021, and May 2021 for an addendum medical opinions to address whether the Veteran's use of topical corticosteroid might be considered systemic therapy. The Veteran also appealed entitlement to service connection for chronic kidney disease. This issue was remanded by the Board in March 2021. As this issue is being developed by the RO, it is not currently before the Board. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's dermatophytosis (ringworm) is rated under DC 7813. Under DC 7813, dermatophytosis is to be rated as disfigurement of the head, face, and neck (DC 7800); scars (DCs 7801-7805); or dermatitis (DC 7806), depending on the predominant disability. As the skin disability does not result in disfigurement of the head, face, and neck, DC 7800 is not applicable. Additionally, there is no evidence of scarring. Therefore, the skin disability is appropriately rated under DC 7806 for dermatitis or eczema. During the pendency of the appeal, the Schedule for Rating Disabilities that addresses DCs 7801, 7802, 7805, and 7806 was amended, which went into effect on August 13, 2018, 83 Fed. Reg. 32592 (July 13, 2018). Accordingly, both the pre-amended and amended versions of the rating schedule are applicable. VA will consider the claim in light of both versions and whichever is most favorable to the Veteran will be applied. Under the pre-amended criteria, a 10 percent rating was warranted when there was 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 warranted when the evidence shows dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted when the evidence shows constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required over the past twelve-month period, more than 40 percent of the entire body affected; or, (60 percent), or more than 40 percent of the exposed areas of the body affected. (60 percent). Under the amended regulations, a 10 percent rating is warranted where at least one of the following is present: 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 six weeks over the past 12-month period. The provisions of 38 C.F.R. § 4.118 define systemic therapy as 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. A 30 percent rating requires at least one of the following (1) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Under the amended criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "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." Regarding the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 was generally not inclusive of topical corticosteroids. The Federal Circuit found 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'." Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. The Veterans Claims Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the... judicial appeal process has been concluded, the version most favorable to appellant should and... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991); but see 38 U.S.C. § 5110 (g) (where compensation is awarded or increased pursuant to a change in the law, the effective date shall not be earlier than the effective date of the new law). However, the Federal Circuit's interpretation of the term "systemic therapy" in the revised criteria applies throughout the entire period prior to the August 13, 2018, effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). Prior to October 19, 2015 Turning to the medical evidence, a July 2010 medical treatment record indicated no rashes or skin lesions on examination. Next, a July 2011 medical treatment record reflected that Diprolene AF was added to the Veteran's medications. In a March 2013 VA examination, the examiner diagnosed dermatophytosis but found that the skin condition did not cause scarring or disfigurement of head, face, or neck. The examiner noted that the Veteran's skin condition was treated with topical corticosteroids on a constant/near-constant basis during the past 12 months. It was also noted that the Veteran did not have any visible skin condition at the time of the examination. The examiner also noted that the skin condition was quiescent. In the July 2013 Notice of Disagreement (NOD), the Veteran stated that the topical "cream does not cure nor prevent periodic breakouts." He also reported that the skin rash affected his bilateral feet and fingers. Additionally, he stated that during breakouts he wore flip-flops and was homebound. A December 2020 VA addendum opinion found that the Veteran was not treated with Triamcinolone and Fluocinolone. The February 2021 Board decision found that the December 2020 VA examiner's opinion that the Veteran was not treated with Triamcinolone and Fluocinolone was not supported by the record. In a March 2021 addendum opinion, the examiner was asked to identify each topical medication prescribed to treat the dermatophytosis during the appeal period. The examiner remarked that the active medication list from VAMC noted Fluocinolone, but there was no indication that Fluocinolone was used for a fungal dermatophytosis. The examiner also stated that there were no medications prescribed to treat the dermatophytosis as a corticosteroid was not a customary treatment for a fungal infection. The examiner noted that the dermatophytosis was located on the feet and discussed other topical steroids that reduce inflammation at the site but did not specifically discuss the Veteran's treatment for dermatophytosis. When asked to provide an opinion as to whether each topical non-steroidal medication for the treatment of dermatophytosis or other immunosuppressive drug constituted systemic therapy, the examiner responded the she was unable to locate use of a topical non-steroidal medication for the treatment of dermatophytosis or other immunosuppressive drug. The May 2021 Board decision found that the March 2021 VA examiner's opinion that there was no indication that the Fluocinolone was used for the Veteran's dermatophytosis was not supported by the record. In a June 2021 VA addendum medical opinion, the clinician, a dermatologist, noted that treatment for dermatophytosis, which was a superficial fungal infection of the skin or nails, included topical or oral antifungals. After a thorough review of the claims file, the clinician did not find any evidence of topical or oral anti-fungal treatment in any of the Veteran's active medications list nor evidence of dermatophytosis on any of his physical examinations. The dermatologist indicated that if the Veteran was treated for dermatophytosis while in Vietnam and shortly thereafter, it has since resolved. The dermatologist noted multiple references to use of various topical corticosteroids as early as 2011. He reported that a 2010 office visit did not show any topical corticosteroids on the Veteran's medications list and on a July 2010 treatment record, he had no rashes or skin lesions on exam. However, the dermatologist noted that Diprolene AF was added to the Veteran's medications in July 2011. The dermatologist explained that Diprolene AF was betamethasone, a topical corticosteroid. He noted that topical corticosteroids when used in limited areas as needed were unlikely to be absorbed enough to cause any systemic side effects and it was not considered a systemic medication. Furthermore, the dermatologist explained that topical corticosteroids were not used for fungal skin conditions and could actually make fungal infections worse by spreading them or causing them to go deeper into the hair follicles. The dermatologist indicated that Diprolene AF (betamethasone) cream continued to be noted in the Veteran's active medication list despite notation that he had no active skin lesions on a November 2011 treatment record. Next, the dermatologist referred to the July 2013 NOD where the Veteran stated that betamethasone cream did not cure periodic breakouts on feet and fingers, the itch was unbearable and he wore flip flops on those days to prevent more severe irritation. The dermatologist explained that fungal infections without proper anti-fungal treatment did not come and go; however, atopic or contact dermatitis (forms of eczema) for which topical steroids were appropriate treatments, could an come and go. Additionally, the dermatologist referred to March 2013 VA skin examination, where although the Veteran was noted to have a history of dermatophytosis, on examination, the condition was quiescent and there were no visible skin lesions. It was also noted on the examination report that Triamcinolone, another topical steroid, was being applied by the Veteran on a constant/near constant basis for past 12 months for his skin condition. The June 2021 dermatologist explained that Triamcinolone was unlikely for dermatophytosis and more likely for eczema. He noted that Triamcinolone was not a treatment for dermatophytosis. Further, the dermatologist explained that topical corticosteroids were used for skin conditions that cause inflammation due to their anti-inflammatory, anti-mitotic, and locally immunosuppressive effects. When used for prolonged periods of time with no breaks, they could cause local side effects such as stretch marks, thinning of the skin, acne, rosacea, changes in pigmentation, telangiectasias (small superficial blood vessel growth), and hair growth. However, the dermatologist noted that there did not seem to be any evidence of these changes on skin examination of the Veteran despite the Veteran's claim of constant/near constant use. He also applied the medication locally to the affected areas (not thin-skinned areas) and not all over his body, so it was unlikely that he had enough absorption to cause systemic side effects from topical use. The June 2021 dermatologist concluded, after a review of the treatment records and Veteran's own description of his periodic skin breakouts and the treatments he had been using, it was unlikely that the Veteran had chronic dermatophytosis. He had not had any anti-fungal treatment that would address a fungal skin infection, and the lesions come and go with weather changes and improved with topical steroids, which was more consistent with eczema. Furthermore, he had no evidence of local side effects from chronic topical corticosteroid use and because he was using them to small affected areas on hands and feet with thicker skin, it was unlikely to cause any systemic side effects due to low percutaneous absorption. Turning to the evaluation under the pre-August 2018 rating criteria prior to October 19, 2015, a compensable rating is not warranted. The evidence does not reflect that the Veteran's disability affected at least 5 percent but less than 20 percent of the entire body; at least 5 percent but less than 20 percent of exposed areas; and does not require any intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. For a compensable rating under the pre-amended rating criteria, the Veteran would have had to have been using intermittent systemic therapy or other immunosuppressive drugs, or had the involvement of at least 5 percent of the exposed areas or entire body. However, none of these factors are shown. The evidence does not show that he has ever had these symptoms, or utilized intermittent systemic therapy or other immunosuppressive drugs, and the June 2021 VA addendum opinion specifically found that the Veteran used only a topical corticosteroid therapy, applying the medication locally to the affected areas (not thin-skinned areas) and not all over his body, so it was unlikely that he had enough absorption to cause systemic side effects from topical use. Furthermore, the June 2021 dermatologist noted that the Veteran had no evidence of local side effects from chronic topical corticosteroid use and because he was using them to small affected areas on hands and feet with thicker skin, it was unlikely to cause any systemic side effects due to low percutaneous absorption. As detailed above, the Veteran's treatment for his skin disability is limited to the use of topical corticosteroids therapies meant to treat only the affected areas as opposed to the body as a whole. Therefore, his ongoing corticosteroids use qualifies as topical, rather than systemic, therapy. Turning to rating under the amended rating criteria prior to October 19, 2015, a compensable rating is not warranted. The evidence does not reflect at least one of the following is present: 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 six weeks over the past 12-month period. In this regard, 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 have not been shown. Although the Veteran has been prescribed topical corticosteroids, this treatment did not affect the Veteran's whole body. The Veteran's treatment pertained to a particular surface area that affected only areas on the Veteran's hands and feet. As none of these manifestations were present prior to October 19, 2015, a compensable rating is denied. Since October 19, 2015 Turning to the evidence, in October 2015, the Veteran underwent a private medical evaluation for his skin disability. The physician diagnosed the Veteran with eczema. It was noted that the Veteran treated his skin condition with topical medications on a constant/near-constant basis for the past 12 months. The Veteran did not report use of other treatments besides systemic or topical medications during the past 12 months. Additionally, there was no debilitating episodes due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis found during the past 12 months. The physical examination revealed the Veteran's visible skin condition affected 20 to 40 percent of exposed area. On a September 2017 medical treatment record, fluocinolone 0.01% cream twice daily for irritation was noted on the Veteran's active medication list, a 2019 medical treatment record reflected an active medication list including fluocinolone 0.01% cream twice daily for irritation and a July 2020 medical treatment record active medication list included fluocinolone 0.1% with indication skin irritation. Next, on the November 2020 VA skin examination, it was noted that the Veteran had a history of chronic dermatophytosis of his feet, hands, and forehead since 1970 and he had been using fluocinolone 0.01% cream. The Veteran claimed to get blisters, webbing, flaking, itching but no skin lesions were seen on examination that day. He also reported that his skin lesions worsened with seasonal/weather changes and with anxiety, and he had flareups and remissions, but treatment regimen kept it at bay. In the June 2021 VA addendum opinion, the clinician noted the October 2015 private medical evaluation for the skin, where it was noted that he had eczema of his hands and was being treated with Fluocinolone, another topical steroid, on a constant/near constant basis for the past 12 months. The June 2021 clinician explained that Fluocinolone treatment was appropriate for eczema. The clinician also noted that the triggers and findings on the November 2020 VA examination were more consistent with eczema and not dermatophytosis. Further, the clinician indicated that Fluocinolone cream was not an appropriate treatment for dermatophytosis and dermatophytosis did not come and go without proper treatment. The June 2021 VA dermatologist explained that eczema could be due to multiple things including genetics, environmental changes, contact allergens, dietary triggers, and stress among many other things and it was unlikely related to any conditions/exposures during his time in service decades earlier. Further, the June 2021 dermatologist noted that topical corticosteroids were used for skin conditions that caused inflammation due to their anti-inflammatory, anti-mitotic, and locally immunosuppressive effects. He explained that when used for prolonged periods of time with no breaks, they can cause local side effects such as stretch marks, thinning of the skin, acne, rosacea, changes in pigmentation, telangiectasias (small superficial blood vessel growth), and hair growth. However, there was no evidence of these changes on skin examination of the Veteran despite the Veteran's claim of constant/near constant use. He also applied the medication locally to the affected areas (not thin-skinned areas) and not all over his body, so it was unlikely that he had enough absorption to cause systemic side effects from topical use. The June 2021 dermatologist concluded, after a review of the treatment records and Veteran's own description of his periodic skin breakouts and the treatments he had been using, it was unlikely that the Veteran had chronic dermatophytosis. He had not had any anti-fungal treatment that would address a fungal skin infection, and the lesions come and go with weather changes and improved with topical steroids, which was more consistent with eczema. Furthermore, he had no evidence of local side effects from chronic topical corticosteroid use and because he was using them to small affected areas on hands and feet with thicker skin, it was unlikely to cause any systemic side effects due to low percutaneous absorption. Upon review of the evidence, a rating in excess of 30 percent is not warranted for this time period. The percent of exposed areas or entire body are the same under both the pre-amended and amended criteria. As noted above, the Veteran does not have lesions of affected areas of the skin of 40 percent of the entire body or 40 percent of the exposed areas affected. Thus, a higher rating due to percentage of the body affected is not warranted. Under the pre-amended rating criteria, the evidence does not show that he has utilized constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required over the past twelve-month period. The June 2021 VA addendum opinion specifically found that the Veteran used only a topical corticosteroid therapy, applying the medication locally to the affected areas (not thin-skinned areas) and not all over his body, so it was unlikely that he had enough absorption to cause systemic side effects from topical use. Furthermore, the June 2021 VA examiner noted that the Veteran had no evidence of local side effects from chronic topical corticosteroid use and because he was using them to small affected areas on hands and feet with thicker skin, it was unlikely to cause any systemic side effects due to low percutaneous absorption. As detailed above, the Veteran's treatment for his skin disability is limited to the use of topical corticosteroids therapies meant to treat only the affected areas as opposed to the body as a whole. Therefore, his ongoing corticosteroids use qualifies as topical, rather than systemic, therapy. Under the amended rating criteria, systemic therapy is described as treatment administered through any route other than the skin. As such, the topical corticosteroids that may arguably qualify under the pre-amended rating criteria would no longer do so. However, again, as examined above, no qualifying treatment rises to the frequency of constant or near-constant systemic therapy such to warrant a higher rating. As such, the medical evidence does not support a higher rating. The Board has considered the Veteran's statements that his disability is worse. While he is competent to report symptoms as this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's dermatophytosis has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.