Citation Nr: 21067023 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-31 860A DATE: November 3, 2021 ORDER Entitlement to a compensable rating for bilateral tinea pedis with onychomycosis is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's bilateral tinea pedis with onychomycosis has not affected at least five percent of the entire body or of exposed areas or required intermittent systematic therapy or other immunosuppressive drugs for a total duration of less than six weeks during a 12-month period. CONCLUSION OF LAW The criteria for a compensable rating for bilateral tinea pedis with onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1986 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran perfected a timely appeal to that decision. In May 2018, the Board remanded the case to the RO for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2019. In August 2019, the Board again remanded the case to the RO for further development; an SSOC was issued in July 2020. The case was once again remanded by the Board in February 2021. Following the requested development, another SSOC was issued in June 2021. The case has returned to the Board for further consideration. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable rating for bilateral tinea pedis with onychomycosis The Veteran's tinea pedis with onychomycosis has been rated by analogy pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813 pertaining to dermatophytosis. Under Diagnostic Code 7813, the skin disability is to be rated as a disfigurement of the head, face, or neck, (Diagnostic Code 7800), scars (Diagnostic Codes 7802, 7803, 7804, and 7805), or dermatitis (Diagnostic Code 7806) depending on the predominant disability. 38 C.F.R. § 4.118. As will be discussed, the Veteran's tinea pedis with onychomycosis involves his feet and does not involve the face or head or cause scarring. As a result, the Board finds that the predominant disability is dermatitis; therefore, the Veteran's disability will be rated under Diagnostic Code 7806, and consideration under Diagnostic Codes 7800 and 7801 through 7805 is not warranted in this case. Prior to August 13, 2018, a zero percent rating was warranted for onychomycosis where there was less than five percent of the entire body affected; 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 required involvement of at least five percent, but less than 20 percent, of the entire body; at least five 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 required involvement of 20 to 40 percent of the entire body; 20 to 40 percent of exposed areas; or systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating required involvement of more than 40 percent of the entire body; involvement of more than 40 percent of exposed areas; or constant or near constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813. During the appeal period, changes were made to 38 C.F.R. § 4.118, Diagnostic Code 7813. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the post-August 2018 rating criteria, a zero percent rating is assigned when there is no more than topical therapy required over the past 12-month period and characteristic lesions involving less than five percent of the entire body affected; or characteristic lesions involving less than five percent of exposed areas affected. A 10 percent rating is assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent 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. A 30 percent rating is assigned for 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 six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned 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. 38 C.F.R. § 4.118 (August 13, 2018). Prior to the August 2018 amendments, the Federal Circuit distinguished between "systemic" therapy versus "topical" therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Nevertheless, a topical corticosteroid could be administered to a large enough scale to affect the body, as a whole, thus meeting the definition of "systemic therapy. Id. With the implementation of the August 2018 amendments, systemic therapy is now defined as 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. 38 C.F.R. § 4.118 (August 13, 2018). The Veteran's claim for an increased rating was received in February 2012. In conjunction with his claim, the Veteran was afforded a VA examination in April 2012 for evaluation of the toenails of both feet. At that time, the Veteran indicated that he continued to have problem with tinea pedis since the military and has been treated with Lamisil, clotrimazole cream, and triamcinolone ointment in the past. He reported that he was recently restarted on the latter two medications in February 2012 with improvement in his tinea pedis. The Veteran indicated that he is employed as a part time contractor and also works in lawn care, that his skin condition has not impacted his ability to work and that he is able to perform his activities of daily living without difficult. It was noted that the Veteran's tinea pedis does not cause scarring or disfigurement of the head, face or neck. The Veteran indicated that he has been treated with Clotrimazole cream and triamcinolone ointment for six weeks or more, but not constant. The Veteran did not have any of the listed visible skin conditions. The examiner noted that the Veteran had dry scaly feet with no evidence of tinea pedis and he was noted to have onychomycosis of the toenails bilaterally. The Veteran did not have any visible skin condition of his feet at the time of the exam. The exposed area is listed at zero percent and the total body area is zero percent. The examiner indicated that the Veteran's skin condition does not impact his ability to work. VA progress notes dated in March 2013 through November 2015 show that the Veteran received clinical evaluation and treatment for bilateral toenails. The records show that the Veteran was prescribed Terbinafine for his feet and toenails (issued in January 2013). A June 2015 VA progress note indicates that the Veteran had tinea pedis, and he was advised to continue Terbinafine as directed. An October 2015 VA examination reflected an evaluation of pseudofolliculitis barbae and there were no findings pertaining to tinea pedis. Another examination conducted in October 2016 consisted of an evaluation of the feet but without any findings pertaining to the skin condition, diagnosed as tinea pedis. The Veteran was afforded a VA examination in December 2018; the examination consisted of evaluation of pseudofolliculitis barbae and there were no findings pertaining to tinea pedis. A March 2019 VA examination reflected the Veteran's reports that he used antifungal powder in his shoes. The Veteran indicated that he has been treated with topical medication (antifungal cream) in the past 12 months for his tinea pedis with onychomycosis, that the total duration of the medication was reported to be constant/near constant and that he has not had any treatment other than systemic or topical medications in the past 12 months. The examiner noted that the Veteran's tinea pedis affects less than five percent of the total body area and none of the exposed area. It was also noted that the Veteran has discoloration on the right great toe consistent with onychomycosis and some mild discoloration on left 4th likely due to same. The examiner indicated that there were no tinea lesions present on the feet at the present time. In a November 2019 medical opinion, a VA examiner stated that, on review of the Veteran's Vista pharmacy records (from 1997 to present) and clinical notes in Computerized Patient Record System (CPRS) (1999 to present) the following topical corticosteroids agents were identified to have been used in treatment of the Veteran's skin rash: topical hydrocortisone cream, topical triamcinolone acetonide and topical betamethasone valerate. The examiner noted that these medications can be absorbed through the skin and can cause systemic effects such as immunosuppression and thus affect the body as a whole. However, on review of the clinical findings in treatment records, no systemic or affect on the body as a whole was found. The examiner found that the Veteran's tinea pedis involved less than five percent of total body and zero percent of exposed body. A June 2021 VA examination report reflected the Veteran's reports of having brittle discolored toenails with rash between toes and soles of the feet as well as having itchy and flaky rash and that he used oral terbinafine in the past. The Veteran indicated that treatment includes taking topical antifungals regularly and it was noted that treatment included over the counter topical antifungal cream used regularly. The examiner noted that the total duration of medication in the past 12 months was six weeks or more but not constant. The examiner indicated that the Veteran's skin condition involved less than five percent total body area and none of the exposed area, that tinea pedis involved white patches between the toes, and that onychomycosis involved brittle discolored toenails and it affected all toenails. The examiner noted that none of the Veteran's skin conditions cause scarring or disfigurement of the head, face or neck, that tinea affects one percent of total body, that onychomycosis affects one percent of the total body area and that the conditions affect zero percent of the exposed area. In a subsequent statement, the examiner explained that the medication prescribed for the Veteran's tinea pedis is not a corticosteroid and that the Veteran uses topical antifungal cream. The examiner noted that there was no phototherapy, retinosis, biologics, photochemotherapy, PUVA or other immunosuppressive drugs. The examiner indicated that the Veteran only uses topical antifungal cream, that he has used oral antifungal medication in the past and that the Veteran takes topical antifungal cream greater than six weeks but not constant. The examiner indicated that history provided by Veteran along with records review only indicates antifungal treatment and that there was no evidence of corticosteroids or other treatments listed above. After a thorough review of the record, the Board finds that a higher rating is not warranted for the Veteran's tinea pedis with onychomycosis under either version of Diagnostic Code 7806. Under the former regulations, the evidence does not show that the Veteran's tinea pedis with onychomycosis affected at least five percent of the entire body or at least five percent of the exposed areas affect or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. In fact, during the March 2019 VA examination, the examiner noted that the Veteran's tinea pedis involved less than five percent of total body and zero percent of exposed body; and in June 2021, the examiner observed that the Veteran has used oral antifungal medication in the past. The examiner noted that the Veteran takes topical antifungal cream greater than six weeks but not constant, that the history provided by Veteran along with records review only indicates antifungal treatment and that there was no evidence of corticosteroids or other treatments listed above. Therefore, the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable rating for tinea pedis with onychomycosis under the regulations in effect prior to August 13, 2018. Under the amended regulations, the evidence does not show that the Veteran's tinea pedis with onychomycosis affected at least five percent of the exposed area affected, nor does it show that the Veteran required intermittent systemic therapy. The evidence does not show, the Veteran has not alleged, that he required immunosuppressive drugs for a total duration of less than six weeks over the past 12-month period. The June 2021 VA examiner stated that the Veteran's tinea affects one percent of total body and onychomycosis affects one percent of the total body area and that the conditions affect zero percent of the exposed area. In a subsequent statement, the examiner explained that the medication prescribed for the Veteran's tinea pedis is not a corticosteroid. It was noted that the Veteran uses topical antifungal cream, and no phototherapy, retinosis, biologics, photochemotherapy, PUVA or other immunosuppressive drugs. The examiner indicated that the Veteran only uses topical antifungal cream. Under these circumstances, the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable rating for tinea pedis with onychomycosis under the old regulations or the amended regulations in effect beginning August 13, 2018. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher rating. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. 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, medical treatment records do not show that the Veteran's disability more nearly approximates the criteria in the next higher rating. Here, the observations prepared by skilled professionals are far more probative that the Veteran's own opinion. The Board has considered whether a staged rating or staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he had retired and his current employment status is not clear. However, the Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his bilateral tinea pedis with onychomycosis. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. (Continued on the next page) In light of the above, the Board finds that the criteria for a compensable rating for tinea pedis with onychomycosis of the toenails of the feet is not warranted. More specifically, the probative evidence of record does not otherwise demonstrate that the Veteran's tinea pedis with onychomycosis affected at least five percent of his entire body. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim, and the claim for a compensable rating for tinea pedis with onychomycosis of the toenails on both feet is denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.