Citation Nr: 21066895 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-01 877 DATE: November 2, 2021 ORDER Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial compensable rating for tinea pedis is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for status post lumbar degenerative disc disease (DDD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's hypertension has not been manifested by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 2. At no point during the appellate period did the Veteran's tinea pedis encompass at least 5 percent but less than 20 percent of the Veteran's entire body or at least 5 percent but less than 20 percent of the exposed area affected, or; require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the preceding 12-month period; no more than topical therapy was required. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hypertension are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.104, Diagnostic Code (DC) 7101. 2. The criteria for an initial compensable rating for tinea pedis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, DC 7806, General Rating Formula for the Skin. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1973 to April 1976. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in August 2015 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in March 2020. A copy of the transcript has been associated with the record. This appeal was most recently before the Board in May 2020, at which time it was remanded for additional development. The case has since returned to the Board for adjudication. Regarding the claims for hypertension and tinea pedis, the Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the other claims must again be remanded. The Board sincerely apologizes for any additional delay in rendering a decision for those issues; however, to ensure the Veteran is afforded every opportunity to substantiate his claims, a remand is required. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. 1. Entitlement to an initial compensable rating for hypertension The Veteran's hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101, which evaluates hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating will be assigned where the veteran has (1) a history of diastolic pressure of predominantly 100mm or more requiring continuous medication for control, (2) diastolic pressure readings that are predominantly 100mm or more, or (3) systolic pressure readings that are predominantly 160mm or more. A 20 percent rating is assigned where the veteran has (1) diastolic pressure readings of predominantly 110mm or more or (2) systolic pressure readings of predominantly 200mm or more. A 40 percent rating is assigned where the veteran has diastolic pressure readings of predominantly 120mm or more. A 60 percent rating is assigned where the Veteran has diastolic pressure readings of predominantly 130mm or more. VA regulations do not define the term "predominantly." In promulgating the current version of Diagnostic Code 7101, VA noted that blood pressure readings are variable and expressed a concern that an adjudicative decision could be based on "readings taken on a single, perhaps unrepresentative, day." 62 Fed. Reg. 65215 (Dec. 11, 1997) (It is noted that Diagnostic Code 7101 was revised effective October 2006 to include Note (3): "Evaluate hypertension separately from hypertensive heart disease and other types of heart disease." See 71 Fed. Reg. 52457 (Sept. 6, 2006)). This speaks to a recognition that blood pressure readings vary from examination to examination so that each reading must be read in the context of the entire record. Thus, the Board will define "predominant" as at least half and, more specifically, "being most frequent or common." See Merriam-Webster's Collegiate Dictionary, 11th ed., p. 978 (2003). In other words, if the number of readings meeting a particular criterion occur less than half the time in the record, the readings are not "predominant." If they occur more than half the time, they will be considered predominant if they are the most frequent or common readings. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a noncompensable (0 percent) rating, as in Diagnostic Code 7101, a noncompensable rating will be assigned when the required symptomatology for a compensable rating is not shown. 38 C.F.R. § 4.31. The Veteran's rating is noncompensable for the entire appeal period. Thus, the question in this appeal is whether the Veteran's hypertension has (1) a history of diastolic pressure of predominantly 100mm or more requiring continuous medication; or (2) diastolic readings predominantly 100mm or more; or (3) systolic pressure readings predominantly 160mm or more. The Veteran's service connection for hypertension was granted effective in August 2013 and the record reflects he was diagnosed in approximately 2006. Therefore, in order to determine whether the Veteran has had a history of diastolic pressure readings of predominantly 100mm or more, the Board will consider the evidence in the service treatment records (STRs). The record shows approximately five blood pressure readings in 2007 and none had systolic readings as high as 160mm or diastolic readings as high as 100mm. The STRs contain five blood pressure readings in 2008, and only one showed a diastolic pressure over 100mm. In September 2008, the Veteran's blood pressure was 154/103. None of the systolic readings was as high as 160mm. There are eight blood pressure readings for 2009. Two readings showed diastolic pressure over 100mm. In January 2009, the Veteran's blood pressure was 155/101 and in February 2009, it was 152/105. None of the systolic readings was as high as 160mm. The STRs contain approximately twenty-five blood pressure readings from 2010. Four of them showed diastolic readings of 100mm or higher. In January 2010, blood pressure was 146/100; in March 2010, it was 150/101 and 169/113; and in April 2010, blood pressure was 144/100. Two systolic readings were 160mm or higher. In January 2010, the Veteran had a blood pressure of 164/83 and in March 2010 it was 169/113. There are approximately five readings in the STRs from 2011. Only two of them showed diastolic blood pressure over 100mm. In February 2011, it was 140/104. In May 2011 blood pressure was 155/102. None of the systolic readings was as high as 160mm. The STRs show six blood pressure readings taken in 2012. Three of them showed diastolic readings over 100mm. In July 2012, blood pressure was 140/104 and 170/111. In October 2012, a reading was 165/109. The July 2012 and October 2012 blood pressure readings were the only ones with systolic pressure over 160mm. When considering whether the Veteran has diastolic readings predominantly of 100mm or more, the Board will consider the evidence during the appeal period. In November 2013, the Veteran had a blood pressure reading of 172/100. The Veteran underwent a VA examination for hypertension in July 2015. The Veteran's systolic pressure was 140 on three separate readings; diastolic was 80 on three separate readings. The examiner noted that the Veteran did not have a history of diastolic elevation to predominantly 100 or more. The Veteran's VA outpatient records show not diastolic readings of 100mm or more, and there are no systolic readings of 160mm or more. The Veteran was afforded a VA examination for hypertension in December 2020. The Veteran's systolic pressure ranged from 139 to 163; diastolic ranged from 78 to 96 on three separate readings. The examiner noted that the Veteran did not have a history of diastolic elevation to predominantly 100 or more. Based on the evidence as outlined above, the Board finds that the Veteran's hypertension does not warrant a compensable rating throughout the period on appeal. The Board notes that the evidence does not contain findings that support the assignment of a 10 percent rating under Diagnostic Code 7101, such as diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. While the Veteran had some systolic readings of 160mm or more and some diastolic readings of 100mm or more, the Board finds that the majority of the readings were below those values. For instance, the Veteran's STRs show over fifty blood pressure readings. In order for the Veteran to have historically "predominant" diastolic readings over 100mm or "predominant" systolic readings over 160mm, more than half (or 25) of them would have to have been over those values. However, fewer than 20 of the diastolic readings were over 100mm. During the entire appeal period, the Veteran had fewer than 10 systolic readings over 160mm. In other words, the most frequent or common systolic readings were below 160mm and the most frequent or common diastolic readings were below 100mm. While the Veteran contends that his blood pressure is worse than currently rated, the Board notes that the rating is based on the objective readings, which do not support a compensable rating. The Board also acknowledges the Veteran's representative's argument that the Veteran's blood pressure would be higher without medication; however, the Board notes that it would be speculative to assign a rating based on what the readings would possibly be without medication, and the Board is bound by the actual objective readings in the records. See McCarroll v. McDonald, 28 Vet. App. 267, 272-73 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). Moreover, while the Veteran credibly believes that he is entitled to a higher rating for hypertension, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his hypertension and his views are of limited probative value. The Veteran's lay opinion is far outweighed by the detailed findings and objective readings provided in treatment records. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In conclusion, the objective evidence shows that the Veteran's blood pressure readings are not high enough to meet the criteria for a 10 percent rating for hypertension. Thus, the claim for an increased rating must be denied. 2. Entitlement to an initial compensable rating for tinea pedis The Veteran is seeking a higher disability for his skin disability. The Board notes that the Veteran filed his claim for service connection for tinea pedis in August 2014, and that the appeal of the Veteran's rating was pending when the regulations for rating skin disabilities were amended in August 2018. As the 2018 amendments cannot be applied to the appellate period prior to August 13, 2018, the Board will consider the Veteran's claim under the pre-2018 criteria for the appellate period prior to the amendments. For the appellate period after August 13, 2018, the Board will apply whichever criteria are more favorable to the Veteran. The Veteran's tinea pedis is presently rated as noncompensable (0 percent) under DC 7813-7806. When a disease, injury, or residual condition requires rating by analogy, the DC number will be hyphenated. The additional code used to identify the specific basis for the evaluation is shown after a hyphen. 38 C.F.R. § 4.27. DC 7813 applies to dermatophytosis, and the pre-2018 version of that code instructs the rating body to "rate as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801 to 7805), or dermatitis or eczema (DC 7806), depending upon the predominant disability." The amended version of DC 7813 indicates that the skin disability should be evaluated under the General Rating Formula for the Skin. The General Rating Formula is detailed further below. The Board notes that the evidence shows that the Veteran's tinea pedis is not on his head, face, or neck, is not disfiguring, and is not a scar. Therefore, DCs 7800 to 7805 are not applicable, and DC 7806 is applicable. Under the former version of DC 7806 for dermatitis or eczema, a noncompensable (0 percent) 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-month period. A 10 percent rating requires 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 requires 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. 38 C.F.R. § § 4.118, DC 7806 (2008). 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 eczema, but is rated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following is present: 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 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, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a noncompensable (0 percent) rating, as in the General Rating Formula, a noncompensable rating will be assigned when the required symptomatology for a compensable rating is not shown. 38 C.F.R. § 4.31 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, 16 Vet. App. at 442. Consequently, the types of systemic treatment that are compensable under Diagnostic Code 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 United States Court of Appeals for the Federal Circuit (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. Turning to the evidence, in April 2015, the Veteran had a diabetic foot examination. Visual foot inspection was normal. The Veteran was afforded a VA examination of the skin in July 2015. It was noted that tinea pedis was an infectious condition of the skin. The Veteran reported that he had "athlete's foot" in 2005 and was treated with an oral antifungal medication for onychomycosis and tinea pedis, which was not effective. The Veteran indicated that the condition had worsened. In the previous 12 months, the Veteran had been treated with topical medication for duration of 6 weeks or more, but not constant. The Veteran had not received any other treatment. The examiner indicated that less than 5 percent of the Veteran's total body area was affected and none of the exposed area. The examiner described tinea pedis as a diffuse malodorous scaly rash with maceration between the toes, on the dorsum and plantar aspects. In March 2016, the visual examination of the Veteran's foot was abnormal and he was noted to have a skin rash and "athlete's foot." He was prescribed Lamisil and foot powder for tinea pedis. The Veteran was instructed to apply Lamisil daily for 30 days and use the powder twice daily. The Veteran testified at a Board hearing in March 2020. He reported that he experienced throbbing, swelling, itching, cracking, sores, and numbness of the feet. The Veteran testified that he got powder and a cream, which made his tinea pedis go away, and when he takes care of his feet it does not return. When he stops caring for his feet, they start itching, then he will use medicine again. The Veteran reported that he believed the tinea pedis returned approximately every other month, but he used "topical cream" and lotion to stop his feet from being too dry and irritable. When his feet got dry, they cracked and sores developed. The Veteran underwent a VA examination in December 2020. The examiner indicated that very little flaking was seen on the toes. In the previous 12 months, the Veteran received topical treatment for his tinea pedis for less than 6 weeks. The Veteran had not received any other treatment. The examiner indicated that less than 5 percent of the Veteran's total body area was affected and none of the exposed area. After reviewing the evidence, the Board concludes that the claim for a compensable rating is denied. Under both the pre-amended and amended versions of DC 7806, for a compensable rating, the evidence must show between 5 and 20 percent of the entire body or of exposed areas affected, or intermittent systemic therapy. Thus, for the appeal period after August 2018, neither criteria is more favorable to the Veteran as applying the pre-amended or amended versions would yield the same result. The Veteran reported to the July 2015 examiner that he had used oral medication in service, which was prior to the filing of the claim, but he testified in March 2020 that he had only used lotions and creams. The Veteran's outpatient records show that he was prescribed a powder. The July 2015 and December 2020 examiners both indicated that the Veteran had only used topical treatment and none of the Veteran's exposed area was affected, and less than 5 percent of total body was affected. Indeed, the evidence reflects that the Veteran's feet and toes are affected by tinea pedis, but no other larger surface areas of the body, such as his entire back or entire leg. The Board recognizes that "topical therapy" is not defined; however, "systemic" therapy means affecting the body as a whole, and the Veteran reported using cream and lotion on his feet only, and that such use relieved his itching. Therefore, the Board finds that the Veteran's use of powders and lotions does not pertain to the whole body, especially since it is on less than 5 percent of the body, and his treatment does not constitute systemic therapy, which is required for a 10 percent rating. See Johnson v. Shulkin, 862 F.3d at 1354. The Board affords the July 2015 and December 2020 VA examination reports significant weight, as they adequately address the rating criteria. Given that the adequate examinations did not document any symptoms which would warrant a compensable rating, the claim must be denied. The Board acknowledges the Veteran's reports of pain, decreased blood flow, swelling, and numbness in his feet. However, the December 2020 VA examiner indicated that those symptoms are attributable to the Veteran's diabetes mellitus. Therefore, the Veteran may not receive compensation for those symptoms under the rating criteria for the skin. In summary, the Veteran's claim for an increased rating for tinea pedis is denied, since the evidence does not show at least 5 percent of the body or exposed areas affected, nor does it show treatment with systemic therapy. The benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for lumbar DDD, status post surgery is remanded. The Board remanded this claim in May 2020 pursuant to Sharp. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The July 2015 VA examination was inadequate because the Veteran reported flare-ups, but the examiner did not estimate functional loss due to flares. The Veteran was afforded another VA examination in December 2020, but he denied experiencing flare-ups of the back. Therefore, no estimates regarding flares was provided. However, given the potential for staged ratings, a remand is required for an attempt to obtain a retroactive opinion regarding flares based on the July 2015 VA examination. 2. Entitlement to a TDIU is remanded. The Board is obligated to ensure substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In the May 2020 remand, the Board inferred a TDIU claim and remanded it to the AOJ for development. Specifically, information is required regarding the Veteran's educational and work history, wages or income, and skills, in order to adjudicate the claim and determine whether the Veteran's employment during the appeal period was marginal or protected. The AOJ made such a request in June 2020 correspondence. However, the Veteran did not return the enclosed VA Form 21-8940 or VA Form 21-4192. Because the Veteran's lumbar spine increased rating claim is inextricably intertwined with the TDIU claim however, the Board will defer an appellate decision on this appeal. Also, as this issue is being remanded, the Veteran should be afforded another opportunity to completed the requested documents. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) to obtain all employment information from the Veteran. Complete any development necessary regarding the claim of entitlement to a TDIU based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. 2. Obtain a supplemental opinion from a suitably qualified examiner regarding the Veteran's back disability. Specifically, following review of the record, to include the VA examinations of record, and the previous Board remand, obtain a supplemental opinion from an appropriate VA clinician to estimate the Veteran's functional loss due to flares and after repetitive use over time due to his service-connected DDD of the spine based on the July 2015 VA examination. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination, or by other means if an in-person examination is not feasible. (a.) In answering the above, the examiner should estimate the range of motion of the Veteran's spine during a flare-up and after repetitive use over time based on the July 2015 VA examination report, and in doing so should address: (1) the Veteran's reports of limitations in bending and lifting with flares, and that pain required him to lie down; and (2) whether a flare-up caused functional ankylosis. The examiner should note that an opinion on flare-ups should allow the Board to estimate the average impairment and the level of disability most nearly approximated. (b.) If an examination is conducted, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and any information necessary to estimate the degree of functional loss during flare-ups. If this cannot be performed, the examiner should fully explain why. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left shoulder disability and discuss the effect of the Veteran's service-connected back disability on any occupational functioning and activities of daily living. A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.