Citation Nr: 21064556 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-39 534 DATE: October 20, 2021 ORDER A compensable rating for tinea pedis is denied. A rating of 30 percent for pseudofolliculitis barbae (PFB) throughout the entire period on appeal (September 2009) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's tinea pedis has been characterized as requiring no more than topical medication, affecting less than 5 percent of his body, and affecting no exposed areas. 2. Throughout the period on appeal, the Veteran's PFB has been characterized as abnormal skin texture with follicular papules and hyperpigmentation affecting an area of 6 cm. x 10 cm. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7806-7813. 2. The criteria for a rating of 30 percent for pseudofolliculitis barbae throughout the entire period on appeal from September 2009, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1972 to January 1976. These matters come before the Board of Veterans' Appeals (Board) from an April 2014 rating decision, which evaluated the Veteran's service connected skin disability going back to September 2009. The Veteran testified before the Board at a hearing in June 2021. A transcript of the hearing has been associated with the claims file. Increased Ratings 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. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during the appeal period, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). Tinea Pedis Effective August 13, 2018, VA revised 38 C.F.R. § 4.118, the rating schedule regarding skin disabilities. These revisions apply to all claims filed on or after August 13, 2018. VA is to consider claims filed before and pending on August 13, 2018, under both the old and new rating criteria and will apply whatever criteria are more favorable to the Veteran. 83 Fed. Reg. 32592. A disability rating for tinea pedis is assigned under 38 C.F.R. § 4.118, DC 7813. Prior to August 13, 2018, DC 7813 instructed to rate as disfigurement of the face or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, DC 7813. Here, the evidence of record demonstrates that tinea pedis of the feet is closely analogous to dermatitis under DC 7806. For cases filed before August 13, 2018, DC 7806 warrants a noncompensable rating when the evidence demonstrates: less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period; or, rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7806 (2009). A 10 percent rating is warranted under DC 7806 when the evidence demonstrates: 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. Id. A 30 percent rating is warranted under DC 7806 when the evidence demonstrates: 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. Under DC 7806, "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" is not inclusive of topical corticosteroids. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). In Johnson, the Federal Circuit explained that DC 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." 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." Although a topical corticosteroid treatment could meet the definition of systemic therapy if it were 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. After August 13, 2018, the General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824 became applicable. For cases filed after August 13, 2018, a noncompensable rating is warranted when the evidence demonstrates: 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. 38 C.F.R. § 4.118, DC 7813 (2018). A 10 percent rating is warranted when the evidence demonstrates at least one of the following: Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; 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. Id. Under the new criteria, "systemic therapy" is defined as a treatment administered through any route (orally, injection, suppository, intranasally) other than the skin. Id. The Board finds that a compensable rating for the tinea pedis is not warranted. By way of history, in an April 2014 rating decision, the Veteran was awarded service connection for tinea pedis/tinea unguium/onychomycosis. This was combined with his already service connected pseudofolliculitis barbae into a single disease entity, and assigned as noncompensably disabling under DC 7806, effective from September 23, 2009. The Veteran appealed this rating. In a June 2018 rating decision, the Veteran was separately assigned a 30 percent rating under DC 7800, discussed further below, for PFB from March 20, 2018. The noncompensable rating for tinea pedis was continued as set out in the June 2018 statement of the case. In the June 2021 Board hearing, the Veteran stated that that his tinea pedis is worse than the assigned noncompensable rating. He stated that his tinea pedis causes a scaling, peeling, crusting, and discolored rash on his feet, which can result in open sores. He stated that he treats his tinea pedis every day with over-the-counter topical cream medication. He also stated that his tinea pedis can cause flare-ups that spread to his legs and into his groin area. In July 2012, the Veteran underwent a VA examination regarding his tinea pedis. He described the rash on his feet as intermittent blistering, scaling, dryness, discoloration, and itching. The examiner documented that the Veteran has been seen by several providers, including a podiatrist and a dermatologist, and has been prescribed multiple topical medications, which have not provided significant or sustained improvement. The examiner documented that in the past 12 months the Veteran's tinea pedis required less than six weeks of topical medication use. In addition, the examiner documented that the Veteran's tinea pedis affected less than 5 percent of his body and affected no exposed areas. Regarding the Veteran's VA treatment records, in December 2015 the Veteran reported scaly and itchy feet that have been problematic for years. He stated that he tried many over-the-counter antifungal medications with no relief. He was documented as having a foot rash affecting the bilateral feet and all 10 toenails. He was recommended to start a prescription of oral Lamisil; however, he stated that he wanted to first discuss it with his primary care provider. The subsequent medical evidence of record does not indicate any oral prescriptions for the Veteran's tinea pedis. In March 2018, the Veteran underwent a second VA examination regarding his tinea pedis. The examiner documented that the Veteran began having problems with the skin of his feet during service and that since that time he has treated with multiple topical medications without improvement. The examiner documented that in the past 12 months the Veteran's tinea pedis required near constant use of over-the-counter medicated foot powder. Lastly, the examiner documented that the Veteran's tinea pedis affected less than 5 percent of his body and affected no exposed areas. In June 2020, the Veteran submitted a photograph which shows scaly and cracked bilateral feet and a bumpy rash on the bilateral legs. In June 2021, the Veteran submitted a photograph which shows scaly, cracked, and crusting bilateral feet. The Board finds that the probative evidence of record demonstrates that a compensable rating throughout the period on appeal is not warranted. The findings of the July 2012 and March 2018 VA examinations both consistently demonstrated that the Veteran's tinea pedis affected less than 5 percent of his body and affected no exposed areas. Further, both VA examinations demonstrated that the Veteran did not require more than topical over-the-counter medications to treat his tinea pedis. The Board acknowledges the Veteran's contention that his tinea pedis causes flare-ups that spread to his bilateral legs and groin; however, the Veteran's tinea pedis is documented as a skin disability of the feet. Flare-ups have not been documented in the VA examinations or treatment records, and the described symptoms affecting the bilateral legs have not been diagnosed as tinea pedis or as caused by tinea pedis. Additionally, although the evidence indicates that the Veteran was recommended to try an oral prescription for tinea pedis, the evidence of record indicates that the Veteran continued with only topical medication and did not proceed with any systemic therapy. Thus, the Board finds the probative evidence demonstrates that throughout the period on appeal the Veteran's tinea pedis has been characterized as requiring no more than topical medication, affecting less than 5 percent of his body, and affecting no exposed areas, which warrants a noncompensable rating under DC 7806. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a compensable rating for tinea pedis. Therefore, this aspect of the appeal is denied. PFB As noted above, the Veteran was initially assigned a noncompensable combined rating for PFB and tinea pedis for the period prior to March 20, 2018, under DC 7806, and is presently assigned a 30 percent rating for PFB under DC 7800 for the period thereafter. 38 C.F.R. § 4.118. Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck are evaluated under DC 7800. Note (1) to DC 7800 provides that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are as follows: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and, skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A rating is warranted under DC 7800 when the evidence demonstrates burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: with one characteristic of disfigurement (10 percent); with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears, (auricles), cheeks, lips) or with two or three characteristics of disfigurement (30 percent); or, with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement (50 percent). 38 C.F.R. § 4.118, DC 7800. As noted above, Effective August 13, 2018, VA revised 38 C.F.R. § 4.118, the rating schedule regarding skin disabilities. These revisions apply to all claims filed on or after August 13, 2018. VA is to consider claims filed before and pending on August 13, 2018, under both the old and new rating criteria and will apply whatever criteria are more favorable to the Veteran. 83 Fed. Reg. 32592. For purposes of the Veteran's PFB rating under DC 7800, however, the rating criteria did not change. The Board finds that a 30 percent rating for PFB is warranted throughout the entire period on appeal. In the June 2021 Board hearing, the Veteran stated that he is satisfied with his currently assigned 30 percent rating for PFB; however, he contends that the 30 percent rating is warranted throughout the entire period on appeal, which the RO's re-working of the Veteran's overall skin disabilities in the 2014 rating action on appeal, dates back to 2009. He stated that the severity of his PFB was demonstrated during service by his shaving waiver and a submitted in-service picture and that his PFB has remained consistent since separation from service to the present. In November 2010, the Veteran underwent an VA examination regarding his PFB. The examiner diagnosed the Veteran as having PFB of the beard area of the face and neck, which was noted as constant. The examiner documented the symptoms as occurring when the Veteran shaves, noting that with the exception of the chin whiskers and the mustache, the other facial and neck beard areas bilaterally grow out and involute creating scatter sore pustular lesions. The examiner documented the Veteran as having one tiny tender lesion below left ear; several macular lesions below jawline on the left neck portion of the beard; and a smaller macular lesion below jawline on the right neck portion of the beard. The examiner also noted that no exposed areas and less than 5 percent of the body was affected. (However, given the specific description of the condition as present proximate to the jaw line, the Board accords no weight to the note that there were no exposed areas affected.) Lastly, the examiner noted that the Veteran had a shaving waiver during service to let the beard grow out as he has less acute symptoms when he does not shave. Subsequently, in an April 2014 rating decision, the Veteran was assigned a noncompensable rating under DC 7806 for his combined skin disabilities, including tinea pedis and PFB. The Veteran's skin disability was noted as affecting less than 5 percent of the entire body and requiring no more than topical therapy during the past 12-month period. Regarding the Veteran's VA treatment records, in December 2015 the Veteran is documented as having papules on his neck and chin in the beard area. He stated that he has problems with painful bumps in his beard when he shaves and that he uses a trimmer to maintain his facial hair in an attempt to minimize the bumps. In March 2017, the Veteran was documented as having continued problems with shaving. The medication prescribed for PFB was noted as not seeming to accomplish what was needed. The Veteran reported that if the ingrown hairs are not freed, they continue to grow and pulsate, and are uncomfortable, inflamed, and bleed when released. In March 2018, the Veteran underwent a second VA examination regarding his PFB. He was diagnosed as having PFB with firm follicular papules of the anterior neck and beard area. The examiner noted that the Veteran began having problems with the skin of his anterior neck and beard area during service and was given a shaving waiver. The examiner also noted that the Veteran was given multiple razor types to attempt to minimize papules to no avail. In a May 2018 addendum VA examination opinion, the Veteran's PFB was characterized as having papules affecting a total area of 6 cm. x 10 cm. of the anterior neck. This also was indicated to be 40 percent of the face and neck. In May 2012 the Veteran submitted a photograph taken during service documenting his PFB, which demonstrates multiple follicular papules, and in May 2018 the Veteran submitted a current photograph documenting his PFB, which also consistently demonstrates multiple follicular papules. As noted above, in a June 2018 rating decision, the Veteran was assigned a 30 percent rating under DC 7800 for PFB for the period from March 20, 2018. The regional office noted that photographs submitted demonstrated that the area of skin affected by papules is also hyperpigmented. The Veteran's PFB was noted as having two characteristics of disfigurement, with an abnormal texture caused by follicular papules and as being hyperpigmented in an area covering 60 sq. cm. The Board finds that the probative evidence of record demonstrates that under DC 7800 the Veteran's PFB has remained consistent with the findings of the March 2018 VA examination and May 2018 VA examination addendum opinion throughout the entire period on appeal. First, the November 2010 VA examiner, specifically documented that PFB affected the Veteran's beard area, including the face and neck. The examiner also documented multiple sore pustular lesions of the Veteran's face, jaw, and neck, and documented that the symptoms are constant and have been present since service. Second, the findings of the March 2018 VA examination and May 2018 VA examination addendum opinion also consistently demonstrate PFB with pustular lesions, described as follicular papules, of the beard area of the neck and face. The Veteran's PFB was also characterized as having papules affecting a total area of 6 cm. x 10 cm. of the anterior neck, and affecting 40 percent of the exposed area. Third, throughout the period on appeal the Veteran's VA treatment records also consistently demonstrate papules of the beard area of the face and neck, which are inflamed, uncomfortable, and bleed when released. Moreover, the photograph taken during service and submitted in May 2012 and the photograph taken in May 2018 also establish consistent PFB symptoms throughout the period on appeal with multiple follicular papules clearly demonstrated on the beard area of the face and neck. Thus, the Board finds that throughout the period on appeal the evidence has repeatedly demonstrated the criteria for a rating of 30 percent under DC 7800 as the Veteran's PFB has been consistently characterized as abnormal skin texture with follicular papules and hyperpigmentation affecting the beard area of his neck and face, an area that has been determined as 6 cm. x 10 cm, and 40 percent of the exposed area affected. Therefore, a rating of 30 percent is warranted throughout the entire period on appeal. As the Veteran has testified that his appeal of the issue would be satisfied by the 30 percent rating throughout the entire period on appeal, the Board need not consider a higher percentage. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, resolving any remaining reasonable doubt in the Veteran's favor, the Board finds that the requirements for establishing a 30 percent rating for PFB throughout the entire period on appeal have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.