Citation Nr: 21068541 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-13 240 DATE: November 10, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for tinea is denied. FINDING OF FACT The Veteran's tinea is rated as 60 percent disabling, which is the maximum schedular rating permitted under both the old rating and updated criteria without visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features, or six or more characteristics of disfigurement. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 60 percent for tinea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.21, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to April 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision which granted service connection for tinea, evaluated as noncompensable, effective December 16, 2010. In April 2014, the Veteran testified before a Decision Review Officer at a Regional Office hearing. In April 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. Copies of both transcripts are associated with the record. In August 2018, the Board remanded the matter for further development, to include obtaining a new VA examination. In a December 2020 rating decision, VA granted an increased initial disability rating of 60 percent, effective December 16, 2010, and indicated that it was a full grant of the benefit sought on appeal. In August 2021, the Board found that the grant of a 60 percent evaluation was not a maximum grant of the benefit sought and remanded the matter for the issuance of a supplemental statement of the case (SSOC). Entitlement to an initial disability rating in excess of 60 percent for tinea. The Veteran contends that he is entitled to a higher rating for his tinea. For the following reasons, the Board finds that an increased initial rating is not warranted at any point during the appeal period. The Veteran's tinea is rated at 60 percent under Diagnostic Code 7813-7806, effective December 16, 2010. 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 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, Diagnostic Code 7813. Prior to August 13, 2018, under Diagnostic Code 7806, a maximum 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. 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 maximum 60 percent rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. Here, the evidence of record demonstrates that the predominant disability is dermatitis. VA treatment records and examination report reflects that the Veteran's tinea presents on his hands and feet, groin and armpits, and head. The Veteran has been prescribed several creams and lotions throughout the appeal period, including clobetasol, a topical steroid. The Veteran has also been prescribed oral antihistamines to relieve itching from his tinea, which he reports keeps him up at night. A March 2013 VA examination report reflects that the Veteran reported tinea affecting the top of his head, axillary regions, and groin, and the examiner noted small areas of hypopigmentation and scaling without scarring on the Veteran's head. The examiner found use of topical medications for six weeks or more, but not constant, and less than 5 percent of total body area and less than 5 percent of exposed areas was affected. A July 2020 VA examination report reflects that the Veteran reported tinea affecting his axillary regions, groin, hands, and feet. The examiner found constant/near-constant use of topical corticosteroids and oral antihistamines during the past 12 months, with 5 to 20 percent of total body area and less than 5 percent of exposed areas affected. As noted above, in this case the predominant disability is dermatitis. As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7806, there is no basis to award a higher rating under that Diagnostic Code. However, the Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation, to include whether a higher rating is warranted under Diagnostic Code 7800 for scars or other disfigurement of the head, neck, or face, or Diagnostic Codes 7801-7805 for scars. While the evidence reflects the presence of tinea on the top of the head, with small areas of hypopigmentation and scaling but without scarring, the evidence does not reflect that his tinea has resulted in visible or palpable tissue loss and either gross distortion of asymmetry of three or more features or paired sets of features, or six or more characteristics of disfigurement, such as scar of five or more inches, scar at least one-quarter inch wide, elevated or depressed surface contour of a scar, scar adherence to underlying tissue, hypo- or hyperpigmentation in an area exceeding six square inches, abnormal skin texture in an area exceeding six square inches, missing underlying soft tissue in an area exceeding six square inches, or indurated and inflexible skin in an area exceeding six square inches. Additionally, the maximum rating available under the diagnostic codes for scars is 40 percent. As such, the evidence does not reflect that the Veteran's tinea warrants a higher 80 percent rating under Diagnostic Code 7800 or another diagnostic code. 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 60 percent for tinea, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.