Citation Nr: 21064501 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-34 636 DATE: October 20, 2021 ORDER Entitlement to a compensable rating for service-connected tinea pedis, based upon substitution of the Appellant as the claimant, is denied. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), based upon substitution of the Appellant as the claimant, is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's tinea pedis did not require treatment and did not cover at least five percent of his entire body or exposed areas affected. 2. The evidence of record does not demonstrate that the Veteran had a psychiatric disability from the date of the claim to his passing. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria for a compensable rating for service-connected tinea pedis, based upon substitution of the Appellant as the claimant, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7806, 7813. 2. The criteria for service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), based upon substitution of the Appellant as the claimant, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1969. He passed away in February 2015. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2019. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in December 2019, at which time they were remanded for additional evidentiary development. 1. Entitlement to a compensable rating for service-connected tinea pedis, based upon substitution of the Appellant as the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In adjudicating these claims, the Board must assess the competence and credibility of the Appellant. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the present case, the Veteran filed a claim for an increased rating for his service-connected tinea pedis in March 2013. He was assigned a noncompensable rating pursuant to Diagnostic Code 7813, which applies Diagnostic Code 7806 prior to August 13, 2018, and the General Rating For the Skin thereafter. 38 C.F.R. § 4.118. 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. Prior to August 13, 2018, under DC 7806, a 10 percent rating is assigned for involvement of 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 assigned for involvement of 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 involvement of 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one 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. Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. 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. 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Effective August 31, 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). In the present case, the Veteran underwent a VA examination in September 2013. The examiner noted that the Veteran had been diagnosed with tinea pedis over 10 years prior to the examination. During the examination, the Veteran reported that his skin disability was recurrent and triggered by exposure to warmth and heat but reported that his last episode was several years ago. He noted that he had avoided vacationing to areas where his bare feet would be exposed to excessive warmth or heat. He denied any other accompanying symptoms. The Veteran had not been treated with oral or topical medications in the past 12 months. During the examination, it was noted that he did not have any skin disability present. The Veteran's VA treatment records and records from H.F. do not show any complaints, symptoms, or treatment related to his tinea pedis from March 2013 to his passing in February 2015. After a review of the evidence, the Board finds that a compensable rating is not warranted for the Veteran's service-connected tinea pedis. In this regard, the VA examination and treatment records reveal that the Veteran's tinea pedis had not been active for several years prior to the filing of his claim in March 2013. There is no indication from the VA examination or treatment records that he had an active disability from March 2013 prior to his passing in February 2015. The Board acknowledges the Appellant's testimony at the hearing in September 2019, at which time she indicated that the Veteran had limitation of motion of his feet, issues walking because of the pain, loss of covering and peeling of his feet, and used cream from VA for his skin disability. Although the Board finds that the Appellant is competent to describe her observations of the Veteran's feet, the Board does not find these statements credible. In this regard, during the September 2013 VA examination, the Veteran reported that his last episode of skin symptoms was several years prior and that he was not receiving any treatment. Moreover, his treatment records from VA and H.F. from September 2013 to February 2015 reveal no prescription or over the counter medications or creams for his tinea pedis. Lastly, the Board finds that the Appellant's statements indicating that he had limitation of motion of his feet due to his tinea pedis is a medical question and not subject to lay expertise See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As such, the Board places no weight on the Appellant's statements to this effect. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the claim of entitlement to a compensable rating for the Veteran's tinea pedis, based upon substitution of the Appellant as the claimant, must be denied. 2. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), based upon substitution of the Appellant as the claimant. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998). During the claim period, a new fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was released and represents the most up-to-date clinical diagnostic guidelines. This revised version of the DSM applies to all claims pending at the RO on or after August 4, 2014, as was the case here. See 38 C.F.R. § 4.125(a). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. In the present case, the Veteran filed a claim in March 2013 for posttraumatic stress disorder (PTSD). He submitted a stressor statement in August 2013 and indicated that something bad happened every day in Vietnam. He has confirmed service in Vietnam from July 1967 to July 1968. The Veteran's service-treatment records are negative as to any mental health symptoms, complaints, or treatment. The Veteran underwent a VA examination in September 2013, at which time the examiner concluded that he did not meet the DSM-IV criteria for a diagnosis of a psychiatric disorder, including PTSD. During the examination, the Veteran indicated that the memories of his experiences from Vietnam will always stay with him, but he did not believe that it caused any emotional problems for him. He was not receiving any mental health treatment. A records review and medical opinion was issued in November 2020 by a VA examiner. The examiner conducted a review of the record, including the September 2013 examination, and indicated that he did not meet the DSM-V criteria for a diagnosis of PTSD or any other additional mental health disorder. The examiner reasoned that although the DSM-IV criteria was utilized in the September 2013 VA examination, the Veteran did not endorse any mental health symptoms or occupational impairment, and did not meet the criteria for any diagnosis based on DSM-V criteria. The examiner further indicated that although the Appellant indicated that the Veteran experienced mental health symptoms, this was not supported by the available medical records or the Veteran's self-report at his examination in 2013. The Veteran's VA treatment records and records from H.F. do not indicate that the Veteran experienced any symptoms or treatment for any mental health disorder. After a review of the evidence, the Board finds that service connection for an acquired psychiatric disability, including PTSD, is not warranted. In this regard, there is no evidence that the Veteran had any diagnosed mental health disability prior to his passing. As confirmed by the September 2013 and November 2020 examiners, he did not meet the criteria for a mental health disability under DSM-IV or DSM-V. The Board acknowledges the Appellant's August 2013 statement indicating that the Veteran did not speak of his time in Vietnam and his mood became agitated and his drinking increased over time. The Board also recognizes her hearing testimony in September 2019 indicating that he experienced nightmares on a regular basis. However, the Board finds that the issue of whether the Veteran had a diagnosed mental health disability prior to his passing is a medical question and beyond the competence of lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As such, the Board places no weight on the Appellant's statements to this effect. In light of the foregoing, the Board finds that service connection is not warranted for an acquired psychiatric disability, including PTSD, based upon substitution of the Appellant as the claimant. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for an acquired psychiatric disorder must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.