Citation Nr: 21065064 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 11-16 869 DATE: October 23, 2021 ORDER Entitlement to an increased disability rating of 30 percent, but no higher, for chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT Throughout the appeal period, the symptoms of the Veteran's service-connected chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, more nearly approximated affected areas of 20 to 40 percent of the entire body or affected areas of 20 to 40 percent of exposed areas. CONCLUSION OF LAW Throughout the appeal period, the criteria for an increased disability rating of 30 percent, but no higher, for chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Codes (DCs) 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, increased the evaluation for chronic, recurrent dermatophytosis of the thighs to 10 percent, effective June 27, 2007, and denied the claims of service connection for hypertension and chronic low back pain with mild degenerative changes as the evidence submitted was not new and material. The Veteran timely appealed these matters. In February 2018, the Board found that the RO first adjudicated the issue of entitlement to service connection for hypertension in the June 2008 decision and considered the claim on a de novo basis. The Board additionally reopened the claim for service connection for a back disorder and remanded the claims of service connection for back disorder and hypertension, as well as the claim for an increased disability rating for dermatophytosis, for further development. In February 2020, the Board remanded the claims of service connection for back disorder and hypertension, as well as the claim for an increased disability rating for dermatophytosis of the thighs with bilateral tinea pedis and onychomycosis of the toenails, for further development, to include obtaining outstanding medical treatment records and obtaining VA examinations. The AOJ has substantially complied with the Board's February 2020 remand instructions by sending the Veteran a VA Form 21-4142, obtaining outstanding VA treatment records, and as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim for an increased disability rating for chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). However, as discussed further below, another remand is necessary for the claim of service connection for hypertension. In an August 2021 rating decision, the RO granted the claim of service connection for degenerative disc disease and spinal stenosis (claimed as chronic low back pain with mild degenerative changes) with an initial evaluation of 10 percent, effective June 27, 2007. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Thus, this issue is no longer before the Board. As a final preliminary matter, in February 2018, the Board characterized one of the issues on appeal as entitlement to an effective date earlier than June 27, 2007 for the assignment of a 10 percent evaluation for dermatophytosis of the thighs with bilateral tinea pedis and onychomycosis of the toenails. However, entitlement to an earlier effective date for the increase in the evaluation of the Veteran's skin disability from noncompensable to 10 percent is not separate and distinct from the increased rating claim, but rather an aspect of the claim on appeal, which seeks the highest rating possible for the entire appeal period. Disability ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required . 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to an increased disability rating for chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae The Veteran's service-connected chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, is evaluated under DCs 7813-7806, and rated noncompensable from March 11, 1974 and 10 percent from June 27, 2007. 38 C.F.R. § 4.118. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § § 4.27. DC 7813 pertains to dermatophytosis and is rated by analogy under DC 7806 for dermatitis or eczema. VA has amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). Under the former version of DC 7806, a 10 percent rating required that 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 be affected, or intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating required that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating required that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. Under the new 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." DC 7806 continues to apply to dermatitis or psoriasis, but is rated under the General Rating Formula for the skin. Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following are present: characteristic legions 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 warranted where at least one of the following is present: characteristic lesions involving 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, psoralen with long-wave ultraviolet-A light (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 warranted for 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. Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Consequently, the types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. Warren v. McDonald, 28 Vet. App. 194 (2016). In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that "systemic" is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court discussed two ways that a treatment could be shown to be systemic: (1) the method by which the treatment works to treat the medical condition, and (2) the side effects that are possible or actually experienced as a result of the treatment. In March 2008, a VA examiner diagnosed the Veteran with severe, chronic tinea pedis with hyperkeratosis and onychomycosis of the toenails. The Veteran had been treated with topical creams for itching, urea for hyperkeratosis, and with topical anti-fungal creams. He experienced persistent fungal changes with hyperkeratosis, itching and scaling of the skin of feet, and hyperkeratotic nails. The examiner also indicated that the Veteran had bilateral nummular eczematous lesions on his lower legs with hyperpigmentation and scarring. It was noted that this condition was persistent with intermittent remissions that he treated with topical corticoids. Upon examination, the VA examiner found that none of the Veteran's exposed areas of the head, face, neck, and hands were affected, and greater than 5 percent, but less than 20 percent, of the total body area was affected. In February 2014, the examiner diagnosed the Veteran with dermatitis or eczema and dermatophytosis. It was noted that the Veteran's skin rash was not active at the time of the examination and that his symptoms usually occurred during the spring and summer as they are worse in hot weather. The Veteran reported that his symptoms have extended from the buttocks to the legs with fungal dermatitis on the feet and toenails. He noted that he used Eucerin cream and Vaseline to treat his symptoms, and had used Clotrimazole cream and Diflucan for the fungus. The examiner indicated that the Veteran had four or more non-debilitating episodes of urticaria during the summertime and that his condition responded to treatment with antihistamines and sympathomimetics. The Veteran had been treated with oral or topical medications in the past 12 months for a skin condition for 6 weeks or more, but not constantly. Upon examination, the VA examiner found that none of the Veteran's exposed areas of the head, face, neck, and hands or total body area were affected. In July 2016, the VA examiner diagnosed the Veteran with tinea pedis and tinea unguium. The Veteran reported he used Miconazole powder on his feet, and that he developed bumps on his thighs in the summer months. The Veteran had been treated with oral or topical medications in the past 12 months that was constant/near-constant. Upon examination, the VA examiner found that none of the Veteran's total body area was affected. In October 2019, a VA examiner diagnosed the Veteran with dermatophytosis of the thighs, tinea pedis, onychomycosis, and pseudofolliculitis barbae. The Veteran reported he had not had a rash on his thighs in a while, but had a dry rash on his feet. He denied treatment for the skin conditions in the past 12 months. The Veteran additionally noted that he did not take medications to treat the pseudofolliculitis barbe, although he used a pain cream at times. Upon examination, the VA examiner found that none of the Veteran's exposed areas of the head, face, neck, and hands or total body area were affected by the dermatophytosis, while the Veteran's pseudofolliculitis barbae affected less than 5 percent of his total body area. In July 2021, a VA examiner diagnosed the Veteran with dermatophytosis of the thighs, tinea pedis, and onychomycosis. The examiner indicated that the Veteran's used topicals of Terbinafine HCL 1% and Miconazole for the fungal infections of the toenails for 6 weeks or more, but not constantly. Upon examination, the VA examiner found that none of the Veteran's exposed areas of the head, face, neck, and hands or total body area, and 5 percent, but less than 20 percent, of the total body area were affected by the dermatophytosis. None of the Veteran's exposed areas of the head, face, neck, and hands were affected, and greater than 5 percent, but less than 20 percent, of the total body area was affected by the Veteran's bilateral tinea pedis and onychomycosis. Specifically, the VA examiner noted that the Veteran's dermatophytosis, consisting of dry and flaking skin on the inner thighs, covered 5 percent of the total body area, the bilateral tinea pedis covered 10 percent of the total body area, and the onychomycosis of the bilateral toenails covered 5 percent of the total body area. For the following reasons, a 30 percent disability rating, but no higher, for the Veteran's service-connected chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, is warranted for the entire appeal period. The evidence is at least evenly balanced as to whether the Veteran's chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae symptoms more nearly approximate the symptoms contemplated by a 30 percent disability rating under DCs 7813-7806. The Veteran's competent and credible statements throughout the appeal period, as well as the July 2021 VA examiner's notations of the areas affected by the skin disability, establish that his service-connected chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, symptoms affected approximately 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Notably, the Court has recognized that some conditions, such as skin disorders, by their inherent nature, wax and wane, as has occurred in this case, and, accordingly, are sometimes active and other times not. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Additionally, there is a lack of evidence showing that the Veteran's skin disability symptoms suddenly became worse on the date of the July 2021 VA examination, particularly in light of the Veteran's competent and credible statements regarding the areas of his body affected by his skin disability throughout the appeal period. In this regard, "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In regard to the effective date for the increased disability rating claim, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically, as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court has interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed.Cir.2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a Veteran's service-connected disability must have occurred during the one year prior to the date of the Veteran's claim...to receive the benefit of an earlier effective date"). Here, the date of the Veteran's claim for an increased rating for skin disability was received by VA on June 27, 2007. Thus, the Board has considered the evidence of record beginning on June 27, 2006 to determine whether the Veteran is entitled to an increased disability rating for skin disability one year prior to the Veteran's date of claim. However, there is no evidence within the one year period prior to the date of claim that indicates it was factually ascertainable that an increase in the Veteran's skin disability had occurred. Thus, the proper effective date for the award of an increased disability rating for skin disability is the date of his June 2007 claim. Moreover, the preponderance of the evidence reflects that the Veteran's skin disability symptoms do not more nearly approximate symptoms contemplated by a 60 percent rating under DCs 7813-7806. The VA examination reports and the Veteran's lay statements indicate that the Veteran's skin disability covers at most between 20 and 40 percent of his total body area or exposed areas. Additionally, the Veteran reported treating his skin disability topically, which does not constitute systemic therapy under the new definition of systemic therapy, and did not otherwise provide any evidence of constant, or near constant systemic therapy over the past 12-month period. As the Veteran has reported only use of topical medications to treat his skin disability, there is no evidence that his skin disability covers more than 40 percent of his entire body or 40 percent of exposed areas, there is no evidence that the method by which the treatment works is systemic, and there is no evidence that the side effects that are possible or actually experienced as a result of the treatment are systemic, the criteria for an increased disability rating higher than 30 percent under DCs 7813-7806 are not met. For the foregoing reasons, the Veteran's service-connected chronic, recurrent dermatophytosis of the thighs, to include bilateral tinea pedis, onychomycosis of the toenails, and pseudofolliculitis barbae, symptoms have more nearly approximated the criteria for an increased 30 percent disability rating, but no higher. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 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). REASONS FOR REMAND Entitlement to service connection for hypertension Regrettably, another remand for further development is needed before the Veteran's claim of service connection for hypertension can be adjudicated by the Board. In August 2017, the Veteran's representative contended in an Informal Hearing Presentation (IHP) that medical evidence and recent studies suggested a link between hypertension, herbicides, and various other medical conditions, such as psychiatric disorders, heart diseases, and the medications used to treat those conditions. When determining service connection, all theories of entitlement reasonably raised by the evidence of record must be considered. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Therefore, remand is necessary to obtain a medical opinion as to whether the Veteran's hypertension is secondarily service-connected to his service-connected posttraumatic stress disorder (PTSD). Accordingly, the matter is REMANDED for the following action: Obtain an opinion from an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was either (a) caused or (b) aggravated by the Veteran's service-connected PTSD, to include any medications taken to treat his PTSD. The physician should specifically consider the medical literature referenced by the Veteran's representative in the August 2017 IHP. If aggravation is found, the physician should identify to the extent possible the baseline level of the disability prior to the aggravation. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.