Citation Nr: 21066285 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-03 471 DATE: October 29, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected tinea versicolor prior to September 19, 2017, is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected tinea versicolor since November 27, 2019, is remanded. FINDING OF FACT Prior to September 19, 2017, the Veteran's service-connected tinea versicolor did not affect more than 20 percent of his entire body or exposed areas, or require systemic therapy, and did not result in disfigurement, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment. CONCLUSION OF LAW Prior to September 19, 2017, the criteria for an initial rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7806-7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1997 to August 1998, and then in the United States Army from March 2004 to December 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his spouse presented sworn testimony before the undersigned Veterans Law Judge at an April 2019 videoconference hearing. A copy of the hearing transcript has been associated with the electronic claims file. In March 2020, the Board issued a decision denying initial ratings in excess of 10 percent for the Veteran's service-connected tinea versicolor prior to September 19, 2017 and since November 27, 2019. The Veteran filed a Motion for Reconsideration, which was denied in a June 2020 ruling. The Veteran filed a timely appeal before the United States Court of Appeals for Veterans Claims (Court). In November 2020, pursuant to an October 2020 Joint Motion for Partial Remand (JMPR) by the Appellant and VA (the parties), the Court vacated the portion of the Board's March 2020 decision regarding the Veteran's skin condition, and remanded the matter to the Board for compliance with the instructions in the JMPR. This matter was remanded by the Board in June 2021 in order to obtain additional VA medical opinions. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 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 Diagnostic Code 7806, a noncompensable rating is assigned for 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 months. A 10 percent rating is assigned for 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the 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 Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. 1. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected tinea versicolor prior to September 19, 2017 The Veteran contends that he is entitled to a rating in excess of 10 percent prior to September 19, 2017, for his service-connected tinea versicolor. As discussed in detail in the June 2021 Board decision, for the period prior to September 19, 2017, the Veteran cannot achieve a rating higher than 10 percent using the new rating criteria, as the Veteran's ketoconazole use was only topical and did not constitute systemic therapy under the revised definition. However, it remained unclear for the period prior to September 19, 2017, whether ketoconazole operated like a corticosteroid or other immunosuppressive drug, and the claim was remanded to obtain a new VA medical opinion. The Board noted that if topical ketoconazole is found to operate like a corticosteroid or other immunosuppressive drug, the question remains as to whether the Veteran's use of topical ketoconazole amounts to systemic therapy. Therefore, in the discussion below, only the old rating criteria will be used to assess the period prior to September 19, 2017. The Veteran's tinea versicolor is rated under Diagnostic Code 7806 as 10 percent disabling from December 30, 2014, to September 19, 2017. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran's tinea versicolor does not more nearly approximate 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. As discussed in the March 2020 Board decision, the Veteran was afforded a VA examination in July 2015, during which the examiner found the Veteran's skin condition affected approximately five percent of his entire body, with no exposed area affected. The examiner also found no scarring or disfigurement to the head, face, or neck, no benign or malignant skin neoplasms, and no systematic manifestations due to any skin diseases. The Veteran's treatment was noted to be ketoconazole, a topical medication used for six weeks or more, but not constant, without any further treatments or procedures. The Veteran did not report any debilitating or non-debilitating episodes. In August 2021, a VA examiner opined that it was less likely than not that the Veteran's antifungal medication, ketoconazole, operated like a corticosteroid or other immunosuppressive drug. As rationale, the examiner explained that ketoconazole is an imidazole antifungal agent and is not an immunosuppressive medication like corticosteroids. The examiner further stated that ketoconazole functions by preventing the synthesis of ergosterol, the fungal equivalent of cholesterol, thereby increasing membrane fluidity and preventing growth of the fungus. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the preponderance of the evidence is against finding that the Veteran's disability more nearly approximates the criteria in the next higher rating. Therefore, based on the foregoing, the Board finds that an initial rating in excess of 10 percent under Diagnostic Code 7806, prior to September 19, 2017, is not warranted for the Veteran's skin condition, as it did not affect more than 20 percent of his entire body or exposed areas, or required systemic therapy The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, there is no evidence in the record that suggests that the Veteran's skin condition has caused disfigurement of the head, face, or neck, or any scars. Thus, Diagnostic Codes 7800-7805 are not applicable. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of a rating in excess of 10 percent for tinea versicolor prior to September 19, 2017. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Since November 27, 2019, entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected tinea versicolor is remanded. In June 2021, the Board remanded the claim for further development. Specifically, the Board requested that a VA examiner provide a medical opinion that addresses whether since November 27, 2019, oral fluconazole has operated like a corticosteroid or other immunosuppressive drug. In August 2021, a VA examiner opined that the oral antifungal medication fluconazole is less likely than not to operate as a corticosteroid or other immunosuppressive drug. However, the rationale in support of the opinion references ketoconazole, not fluconazole, and is a copy of the explanation provided for the opinion discussed above regarding ketoconazole. In other words, the examiner did not specifically address whether oral fluconazole operates like a corticosteroid or other immunosuppressive drug. Remand is required to obtain an addendum opinion. The matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature of the Veteran's service-connected tinea versicolor since November 27, 2019. Following a complete review of the electronic claims file, the examiner must address the following: (a.) Opine whether the oral antifungal medication fluconazole, used to treat the Veteran's service-connected tinea versicolor since November 27, 2019, is "like" a corticosteroid or other immunosuppressive drug. The opinion must be supported by explanatory rationale based on the examiner's medical expertise and clinical experience; current medical principles; and citations to the record, as appropriate Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.