Citation Nr: 21069019 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-13 045 DATE: November 17, 2021 ORDER Entitlement to a higher (compensable) initial rating for the bilateral tinea pedis from November 18, 2013 is denied. FINDING OF FACT From November 18, 2013, the bilateral tinea pedis did not manifest in 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 a 12-month period. CONCLUSION OF LAW The criteria for a higher (compensable) initial rating for the bilateral tinea pedis from November 18, 2013 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from July 1978 to May 1991. This matter is on appeal from a July 2014 rating decision issued by the Regional Office (RO). The Veteran testified in Muskogee, Oklahoma, at a Travel Board hearing in May 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This matter was previously before the Board in October 2020. The Board remanded in order to obtain an updated VA examination. A VA examination was conducted in January 2021. A February 2021 supplemental statement of the case denied the claim. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Rating the Bilateral Tinea Pedis From November 18, 2013 Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7806, the rating code for dermatitis and eczema, a 0 percent rating is provided when 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 is provided when at least 5 percent, but less than 20 percent, of the entire body is covered, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or for 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 provided when 20 to 40 percent of the entire body is covered, or 20 to 40 percent of exposed areas are affected, or for required 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 disability rating is provided when more than 40 percent of the entire body is covered, or more than 40 percent of exposed areas are affected, or for required 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. The Veteran is in receipt of a 0 percent rating for the service-connected bilateral tinea pedis disability from November 18, 2013. The July 2014 rating decision awarded a noncompensable (0 percent) rating under DC 7806 for tinea pedis, finding less than 5 percent of the exposed areas affected. After a review of the lay and medical evidence, and carefully considering the Veteran's testimony about symptoms during flareups, the Board finds that for the entire rating period on appeal the service-connected bilateral tinea pedis disability did not manifest in 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 a 12-month period. A November 2013 disability benefits questionnaire (DBQ) reflects that the Veteran reported that he has not been treated with oral or topical medication in the past 12 months for the tinea pedis or received any treatments or procedures other than systemic or topical medications. The private examiner did not indicate that the tinea pedis disorder exhibited characteristic lesions involving at least 5 percent of the body. The Veteran did not submit any additional private treatment records that document symptoms during a flare up or that quantify body percentage coverage that would meet the criteria for a higher rating. The Veteran testified at a May 2019 Board hearing. The Veteran credibly reported that the disability would flare up and the symptoms were so severe that he infrequently missed work. The Veteran reported pain, skin irritation, and bleeding. The Veteran credibly testified that a private doctor instructed him not to use ointment but rather let the skin "air out." The Veteran explained that during a flare up, which occurred about once a year, 70 to 80 percent of the bottom of his feet would "breakout." The Veteran also indicated that private treatment records might have documented the severity of his symptoms during a flare up, though in fact the private treatment records do not show treatment during a flareup or reports of percentage of body area coverage, including during flareups, that would meet the 5 percent body coverage criteria for a higher (10 percent) rating. Finding the Veteran competent to report skin disorder symptoms and flareups, and finding the Veteran credible in doing so, applying the Veteran's own description of skin symptoms during a flareup to the rating criteria still shows that less than 5 percent of the body is affected. The Veteran's testimony is that the skin disorder affected 70 to 80 percent of the bottom of his feet, and this was the only area affected. The impacted body area described by the Veteran during a flare up does not involve at least 5 percent of the entire body to approximate the criteria for a higher (10 percent) rating. At a VA examination in January 2021, the Veteran reported that he has not been treated with oral or topical medication in the past 12 months for the tinea pedis or received any treatments or procedures other than systemic or topical medications in the past 12 months. The VA examiner noted that the Veteran did not have a skin disorder with visible characteristic lesions at the time of the examination. The preponderance of the evidence is against finding that the criteria for a higher (compensable) initial rating for the bilateral tinea pedis from November 18, 2013 have been met; thus, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.