Citation Nr: 21063853 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-55 123 DATE: October 18, 2021 ORDER Entitlement to a 30 percent initial rating, but no higher and no earlier, for tinea versicolor is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's tinea versicolor has required systemic therapy of at least six weeks per year without manifesting as characteristic lesions involving more than 40 percent of exposed areas affected or of the entire body and has not required constant or near-constant systemic therapy. CONCLUSION OF LAW The criteria for entitlement to a 30 percent initial rating, but no higher and no earlier, for tinea versicolor have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1999 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 25, 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. By way of background, the Veteran was initially assigned a 10 percent initial rating for tinea versicolor. He was subsequently awarded a staged rating of 30 percent for this disorder, effective August 13, 2018 only. See Rating Decision (Sept. 19, 2018). The Board at this time notes that while the Veteran appears to have limited his argument to a 30 percent rating for tinea versicolor, the Board nonetheless notes some remaining argument in support of a potential entitlement to a 60 percent rating. See, e.g.: NOD (rec'd Dec. 8, 2014), at Question No. 15 et seq. (explicitly seeking a 30 percent rating for tinea versicolor); VA Form 9 (rec'd Oct. 12, 2017), at Page 2 ("I feel the VA incorrectly assigned a rating of 10% where the correct rating should be 30%. I am seeking a 30% rating for my tinea versicolor based on the follow facts. [...] According to [38 C.F.R. §] 4.118 this would relate to a 60% rating."). A claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). The Board shall afford the Veteran full consideration of all possible evaluations for his increased rating claim, and accordingly asserts jurisdiction over any potential rating in excess of 30 percent. In other words, the Board shall analyze the claim as if the Veteran did not limit his argument accordingly. See AB v. Brown, supra at 38. The Veteran testified at a hearing before the undersigned Veterans Law Judge on June 1, 2021. A transcript of the hearing has been associated with the claims file for Board review. See Hearing Tr. (June 1, 2021). 1. Entitlement to a 30 percent initial rating effective May 28, 2013, but no higher and no earlier, for tinea versicolor is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, supra. Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As indicated above, the Veteran's tinea versicolor has been assigned a 10 percent rating prior to August 13, 2018, and 30 percent thereaftereach under Diagnostic Code 7806. The Veteran appears to have mostly claimed that this should be rated as 30 percent disabling since the initial receipt of claim; however, he also occasionally remarked that this disorder could be rated as 60 percent disabling. The Board shall assume any limitation of the claim is not clear enough to limit the appeal. See AB, supra. 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 Diagnostic Code 7806, a noncompensable rating is assigned for less than five percent of the entire body or less than five 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 five 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (as effective from October 23, 2008 to August 13, 2018). For claims filed prior to August 13, 2018, the Court of Appeals for Veterans Claims (Court) held that a systematic therapy is one that 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. 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Code 7806. 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 five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent 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 for a total duration of less than six weeks over the past 12- month period. A 30 percent rating is assigned for 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 six 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (as effective from August 13, 2018). The Court, in a July 2017 decision, held that topical use of corticosteroids constitutes systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The Federal Circuit, however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the Secretary that CAVC erred when it "read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" 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." The Federal Circuit went on to explain 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.'" Although 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. In the Veteran's testimony before the undersigned Veterans Law Judge, he urged the Board to treat the August 2018 revisions of the diagnostic codes pertinent to the skin as instructive to the previous version. In other words, if the Veteran were afforded a 30 percent rating for oral medication as specifically identified in the updated diagnostic code, then the same oral medication could constitute "systemic therapy" as contemplated by the version of the diagnostic code as was in effect prior to revision. See Hearing Tr. (June 1, 2021), at Pages 7-12. In short, the Board either agrees with the Veteran's argument, or else concludes that the evidence of record is at least evenly balanced to support a 30 percent initial ratingwhich is more favorable to the Veteran in that it is an increase in the initial rating. To this extent only, the claim is granted, for the reasons to follow. The Board notes that there are three VA examinations of record as pertaining to the Veteran's service-connected tinea versicolor: July 3, 2014; January 5, 2015; and December 27, 2017. In the first examination, the Veteran confirmed to the examiner that he "[had] been treated with numerous topical and oral antifungal medications, and has not had clearance of the rash." See VA Exam (July 3, 2014), at Question No. 2a. While the results of this examination do not indicate whether prescribed ketoconazole was oral or topical, use over the past 12 months was described as "for six weeks or more, but not constant." See id. at Question No. 3a. Additionally, the Veteran was observed to have affected skin on the sides and back of neck up to the jawline, shoulders, upper back, and upper chest. See id. at Question No. 5b. The Board notes that even if the medication were purely topical, it may have required sufficient coverage to enough different areas of his body to constitute "systemic therapy." See Johnson v. Shulkin (Fed. Cir. 2017). However, in this case, the Veteran was prescribed some oral dermatological medication in addition to topical. Meanwhile, as of the second examination, the Veteran indicated that "creams etc do not help." See VA Exam (Jan. 5, 2015), at Question No. 2a. The Board concludes that oral medications were required when topical medications were deemed insufficient. Areas of the body requiring treatment appear to be the same from the first exam, see id. at Question No. 5b; however, the total body area affected (not just exposed areas) appears to have increased to more than 5 percent but not more than 20 percent. See id. at Question No. 5a. Finally, the examiner at the second examination appears to have indicated that the Veteran's treatment has been "constant or near-constant" over the past 12 months, see id. at Question No. 3a, even though the first examiner six months earlier did not characterize the same disorder's treatment as "constant or near-constant." Finally, upon the most recent VA examination of record, see VA Exam (Dec. 27, 2017), the examiner clarified that oral ketoconazole and topical Selsun Blue shampoo are taken "intermittently with some benefit (only to increase)." See id. at Question No. 2a. Consistent with the first examination, the oral and topical medications are each observed as being required over more than six weeks out of the last 12 months, yet neither constant nor near-constant use. See id. at Question No. 3a. Meanwhile, there is no evidence to suggest that the disorder covered more than 20 percent of the Veteran's bodyeither total or of exposed areas. See id. at Question No. 5a. The Board finds that the Veteran is competent to report his treatment regimen in light of a previously diagnosed disorder. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). The Board has considered whether it is more advantageous to apply the former or current regulations to the Veteran's claim. The old regulations are available, if more advantageous, because the Veteran's claim on appeal dates prior to the August 12, 2018 change. For this reason, the Board concludes that the old diagnostic code is available to award an initial 30 percent rating, but that the evidence does not support a rating higher than 30 percent at any time on appeal. As detailed above, the evidence of record is at least evenly balanced to suggest that the Veteran's use of both oral and topical drugs indicate systemic therapy for tinea versicolor affecting his neck, back, and upper chest. Meanwhile, the Board has sympathetically considered whether a rating in excess of 30 percent is warranted. The Board concludes that no higher rating in excess of 30 percent are warranted. The Board has thoroughly considered the January 2015 finding of "constant or near-constant" use; however, the Board concludes that this is most likely merely a momentary or temporary flare-up when the Veteran's tinea versicolor grew to more than 5 percent of his total body, which is still within the manifestations contemplated in a 30 percent rating. Alternatively, the Board places more weight on the alternative findings before and after the 2015 examination, which both purport that the use of systemic therapy lasted more than six weeks out of the past year, but still not "constant or near-constant." Finally, there is no competent or credible evidence of record that his disorder manifested in characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected, nor has the Veteran seriously offered such an argument. As a result, the Board is granting an initial rating of 30 percent only, and denying any further claim for any higher rating. 38 C.F.R. §§ 4.3, 4.7. The Board acknowledges the Veteran's statements that his tine versicolor is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrate that the criteria for a rating higher than 30 percent have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his tinea versicolor. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has also considered whether a staged rating under Hart v. Mansfield, 21 Vet. App. 505 (2007) is appropriate for the Veteran's service-connected tinea versicolor; however, the Board finds that his symptomatology has been stable throughout the period on appeal. By awarding the earlier portion an increase so that the 30 percent rating is the initial rating, the Board is awarding a rating more advantageous than the previous staged rating. Ultimately, assigning any other staged rating for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he was working for a government agency at the June 2021 hearing. However, the Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his tinea versicolor. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. In sum, while the Board grants an initial rating of 30 percent for the Veteran's service-connected tinea versicolor effective May 28, 2013, but no higher and no earlier, see 38 C.F.R. §§ 4.3, 4.7, the Board finds that the preponderance of the evidence is against any further increased rating in excess of 30 percent at any time on appeal. Therefore, to the extent that any such remaining portion of the claim may exist, the benefit of the doubt doctrine is not applicable and his claim for increased ratings in excess of 30 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran testified to the existence of an audiogram in approximately 2018. See Hearing Tr. (June 1, 2021) at Pages 3-4. This audiogram was later submitted into evidence by the Veteran, meaning that the Board has considered it. See Medical Treatment Record (May 5, 2018) (rec'd June 11, 2021 ). Even though the Board is precluded from finding hearing loss for VA purposes within the results of this audiogram, see contra 38 C.F.R. § 3.385, the Board notes that there is no evidence that he was administered a speech discrimination test with the Maryland CNC list. Furthermore, the Veteran submitted testimony that his hearing has become gradually worse, in that he is more susceptible to not hearing a television due to background noise, in that he has to physically lean in more often to hear other people, and in that people report that he talks loudly. See Hearing Tr. (June 1, 2021) at Page 4. Under these circumstances, the Board concludes that the Veteran is, at the very least, entitled to a contemporaneous VA audiological examination to determine if he may have a qualifying hearing disorder now. See e.g.: McLendon v. Nicholson, 21 Vet. App. 456 (2007); Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran an appropriate VA examination to determine the current nature and severity of his claimed bilateral hearing loss. The record, to include a copy of this Remand, must be made available to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The need for an in-person examination is left to the discretion of the examiner. The examiner should indicate whether the Veteran has a diagnosis of hearing loss in either ear (right, left, or bilateral) as defined by VA regulations. Specifically, the examiner should identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. If the Veteran has a disability of hearing loss as defined by VA regulation in either or both ear(s), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include his acknowledged in-service noise exposure, or manifested within one year of his service discharge. The agency of original jurisdiction (AOJ) is advised that the Veteran is service connected for tinnitus. A full copy of the claims file and this decision should be available for the examiner's review. The entire record must be made available to and be reviewed by the examiner, and the examiner must take a history from the Veteran as to the progression of his symptoms. Then, the Veteran's claims should be readjudicated. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.