Citation Nr: 21068805 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-65 181 DATE: November 12, 2021 ORDER Restoration of a 10 percent disability rating for the service-connected tinea pedis to include tinea unguium is granted, effective February 15, 2021. An initial disability rating in excess of 10 percent for the service-connected tinea pedis to include tinea unguium is denied. FINDINGS OF FACT 1. The substantive requirements for the proposed reduction of the disability rating for the service-connected tinea pedis to include tinea unguium were not satisfied. 2. During the entire period on appeal, the Veteran's tinea pedis to include tinea unguium has not covered 20 percent or more of total body or exposed areas and has been treated with no more than topical corticosteroid therapy not affecting the body as a whole. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the Veteran's service-connected tinea pedis to include tinea unguium from 10 percent to noncompensable was not proper and the 10 percent disability rating is restored from February 15, 2021. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344(c), 4.118, Diagnostic Code 7813. 2. The criteria for an initial disability rating in excess of 10 percent for the service-connected tinea pedis to include tinea unguium have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to July 1982. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for tinea pedis to include tinea unguium and assigned an initial disability rating of 10 percent, effective from October 12, 2015. In September 2016, VA received the Veteran's Notice of Disagreement (NOD). In November 2017, the RO issued a Statement of the Case (SOC). In December 2017, VA received the Veteran's VA Form 9 appeal to the Board. In December 2020, the Board remanded the case for further development and adjudication. Following the Board remand, in a February 2021 rating decision, the RO decreased the rating for the tinea pedis to include tinea unguium from 10 percent to noncompensable, effective February 15, 2021. In May 2021, the Board again remanded the case for further development and adjudication. The issue of the propriety of the reduction is considered as part of the increased rating issue on appeal. Rating Reduction 1. The propriety of the rating reduction for the service-connected tinea pedis to include tinea unguium from 10 percent to noncompensable. In general, prior to reducing a veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. When reduction in the rating of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his or her right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. These considerations apply to ratings that have continued for long periods at the same level (five years or more). See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Notably, 38 C.F.R. § 3.344(a) requires that the disability in question has materially improved, and that it is reasonably certain that such improvement will be maintained under the ordinary conditions of life. Nonetheless, for both reductions of disability ratings in place for less than 5 years and 5 years or more and irrespective of § 3.344(a), Brown requires that the disability in question reflects: (1) actual improvement in the disability and (2) that improvement reflects improvement in the ability to function under the ordinary conditions of life and work. See id. at 421; see also Stern v. McDonough, 34 Vet. App. 51 (2021). In this case, the rating reduction for the service-connected tinea pedis to include tinea unguium resulted in a decrease in the Veteran's overall compensation from 90 percent to 80 percent. In April 2019, the RO properly submitted a rating decision proposing the reduction prior to implementation of the reduction. 38 C.F.R. § 3.105(e). The Veteran received notification of the proposed reduction in April 2019. The notification letter advised that the Veteran had 60 days from the date of the letter to submit additional evidence and the right to obtain a predetermination hearing by request submitted within 30 days of the letter. The Veteran did not request a predetermination hearing, and more than 60 days elapsed between the April 2019 proposed reduction and the February 2021 rating decision. Therefore, the procedural requirements for reduction of the rating for the service-connected tinea pedis to include tinea unguium have been met. 38 C.F.R. § 3.105(i)(1). Furthermore, the effective date of the rating reduction February 15, 2021 was more than 5 years from the original grant of service connection for tinea pedis to include tinea unguium, effective October 12, 2015. Therefore, the provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, apply to this appeal. Accordingly, it must be shown that the tinea pedis to include tinea unguium has materially improved, and that it is reasonably certain that such improvement will be maintained under the ordinary conditions of life. In this case, the February 2021 rating decision that reduced the disability rating for the service-connected tinea pedis from 10 percent to noncompensable is void ab initio because the RO failed to apply the provisions of 38 C.F.R. § 3.344. Specifically, given that the Veteran's 10 percent disability rating for tinea pedis to include tinea unguium was effective from October 12, 2015, which is more than 5 years prior to the February 15, 2021 effective date for the reduction, the provisions of 38 C.F.R. § 3.344 would apply. As such, it must be shown that the Veteran's service-connected tinea pedis to include tinea unguium had materially improved such that it is reasonably certain that such improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the February 2021 rating decision that reduced the rating for the tinea pedis to include tinea unguium indicated that there was sustained improvement in the Veteran's tinea pedis to include tinea unguium but did not address whether the tinea pedis to include tinea unguium had materially improved such that the improvement would be maintained under the ordinary conditions of life, as required under 38 C.F.R. § 3.344(a). No decision by the RO during the period on appeal has made this finding. Accordingly, the RO's failure to properly consider the provisions of 38 C.F.R. § 3.344 renders the September 2015 rating decision void ab initio. In conclusion, as the RO did not satisfy the substantive requirements specified in 38 C.F.R. § 3.344, the reduction in this case is void ab initio and restoration of the 10 percent disability rating for the service-connected tinea pedis to include tinea unguium, effective from February 15, 2021, is warranted. Increased Rating 2. Entitlement to an initial disability rating in excess of 10 percent for the service-connected tinea pedis to include tinea unguium. The Veteran's tinea pedis to include tinea unguium is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7813. Under Diagnostic Code 7813, dermatophytosis, including tinea pedis and tinea unguium, is evaluated under the General Rating Formula for the Skin. Under the prior regulations, the General Rating Formula for the Skin provided for a noncompensable disability rating when dermatitis or eczema involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy has been required during the past 12-month period. A 10 percent rating is warranted when affecting at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "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, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. Under this formula, a maximum 60 percent rating requires 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. A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. Id. A noncompensable (0 percent) rating is assigned where there is no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. Id. During the period on appeal, the Veteran received an initial VA examination for his tinea pedis to include tinea unguium in February 2016. At the time of the examination, the Veteran used topical foot corn remover for 6 weeks or more, but not constantly, in the past 12 months. The tinea pedis to include tinea unguium covered over 5 percent, but less than 20 percent, of total body and exposed areas. Regarding functional impairment, the Veteran stated that "he experiences pain in his feet while driving his semi-truck secondary to frequent clutching and braking." Furthermore, he indicated that "he oftentimes has to take early breaks while driving, particularly in stop and go traffic, due to his foot discomfort ... adversely [affecting] his productivity." In his September 2016 NOD, the Veteran stated that he experienced pain on the plantar surfaces of his feet. Furthermore, he reported that he chose a career as a truck driver so he "wouldn't have to stand all day" and that he primarily uses flip-flops for shoes. The Veteran next received a VA examination for his tinea pedis to include tinea unguium in February 2017. The examiner indicated that the Veteran had not been treated with oral or topical medications over the past 12 months. A physical examination revealed that the tinea pedis to include tinea unguium covered less than 5 percent of total and exposed body areas. The tinea pedis was located "bilaterally between toes, and on bottom of foot" and described as "mild" in severity. Moreover, "moderate" tinea unguium was located "under left great toe" and "mild" tinea unguium was noted "under middle and small toe nails." During a November 2018 VA examination for foot conditions, including flat foot (pes planus), the Veteran reported "itchy, tender pain on the bottom of his feet." He also reported "occasionally" getting blisters and callouses on his feet. Notably, the Veteran was diagnosed with bilateral pes planus during the examination. To date, the bilateral pes planus has not been granted service connection. Moreover, during a November 2018 VA examination for xerosis cutis, a diagnosis related to dermatological symptoms on the Veteran's hands, the examiner recorded that the Veteran had used topical corticosteroids for more than six weeks, but not constantly, in the past 12 months and an oral retinoid Urea for less than 6 weeks in the past 12 months. Both medications were used for foot, rather than hand, symptoms. The Veteran received another VA examination for his tinea pedis to include tinea unguium in March 2019. During the examination, the Veteran reported symptoms of scaly feet and discolored nails. The examiner indicated that the Veteran had used a topical antifungal for six weeks or more, but not constantly, in the last 12 months. The examiner recorded that the tinea pedis and tinea unguium covered no exposed areas and less than 5 percent of total body area. A private dermatological record received in February 2020 identifies Triamcinolone cream 10%, Urea lotion, Menthol, and Camphor as medications used to treat the Veteran's foot symptoms. See private dermatological record dated February 17, 2020. The Veteran most recently received a VA examination for his tinea pedis to include tinea unguium in February 2021. At the time of examination, the Veteran reported that the "burning" from tinea pedis and "discoloration" from tinea unguium had worsened. The examiner recorded that neither the Veteran's tinea pedis nor tinea unguium had been treated with medication in the past 12 months. Furthermore, like the March 2019 examiner, the February 2021 examiner indicated that the tinea pedis and tinea unguium covered less than 5 percent of total body area and no exposed areas. In the May 2021 remand, the Board sought an addendum opinion regarding whether any medication that the Veteran had taken during the period on appeal was a corticosteroid or immunosuppressive drug constituting systemic therapy or in other words, affecting the body as a whole to include consideration of whether any topical medications used by the Veteran during the period on appeal fell into this category. In August 2021, a VA addendum opinion was associated with the claims file. In the August 2021 VA addendum opinion, the examiner identified the following medications used by the Veteran during the period on appeal: (1) Triamcinolone; (2) Urea; (3) Menthol; (4) Camphor; and (5) Terbinafine (Lamisil). First, the examiner noted that Triamcinolone is a topical steroid; however, the examiner noted that Triamcinolone "is not considered a systemic steroid and has no systemic immunosuppressant properties." Next, the examiner noted that Urea "is a topical antipruritic with no systemic or topical steroid properties." Regarding the Menthol and Camphor, the examiner stated that they are "nonsteroidal compounds, used for symptom control [with] no antifungal properties." Finally, the examiner noted that Terbinafine "is an antifungal that may be administered orally or topically." Furthermore, the examiner indicated that, "as of January 2017, [the Terbinafine] was a systemic antifungal used for the onychomycosis (tinea unguium) though it would also treat the tinea pedis." However, the examiner opined that "[n]one of these medications are considered immunosuppressive or systemic steroid medication." Based on the foregoing, an initial disability rating in excess of 10 percent for the service-connected tinea pedis to include tinea unguium is not warranted at any time during the period on appeal. In this regard, at no time during the period on appeal has the Veteran's tinea pedis to include tinea unguium covered 20 percent or greater of exposed area or total body area. Furthermore, although Triamcinolone is a corticosteroid, the evidence shows that the use of topical Triamcinolone did not constitute systemic therapy affecting the body as a whole. Importantly, whether a topical therapy is systemic in nature is a factual finding that may be made by the Board. See Burton v. Wilkie, 30 Vet. App. 286, 291-292 (2018). Furthermore, the August 2021 examiner opined that the Veteran's use of topical Triamcinolone did not constitute systemic therapy. Similarly, the August 2021 examiner noted that no other medication taken by the Veteran during the period on appeal was corticosteroid or immunosuppressive in nature. Given the above, the criteria for an initial disability rating in excess of 10 percent for the tinea pedis to include tinea unguium under the prior regulations and the new General Rating Formula for the Skin have not been met at any time during the period on appeal. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.