Citation Nr: 21069254 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-10 345A DATE: November 18, 2021 ORDER Prior to November 13, 2015, entitlement to an initial compensable disability rating for service-connected hyperhidrosis of the feet (hereafter referred to as a "bilateral foot disability") is denied. Beginning November 13, 2015, entitlement to an initial 10 percent disability rating for service-connected bilateral foot disability is granted. After December 13, 2015, entitlement to an initial compensable disability rating for service-connected bilateral foot disability is denied. FINDINGS OF FACT 1. Prior to November 13, 2015, the Veteran's service-connected bilateral foot disability does not manifest at a minimum 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 twelve-month period. 2. Beginning November 13, 2015, the Veteran's service-connected bilateral foot disability manifests no more than intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past twelve-month period. 3. After December 13, 2015, the Veteran's service-connected bilateral foot disability does not manifest at a minimum 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 twelve-month period. CONCLUSIONS OF LAW 1. Prior to November 13, 2015, the criteria for entitlement to an initial compensable disability rating for service-connected bilateral foot condition are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes (DCs) 7806, 7820. 2. Beginning November 13, 2015, the criteria for entitlement to an initial 10 percent disability rating for service-connected bilateral foot condition are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, DCs 7806, 7820. 3. After December 13, 2015, the criteria for entitlement to an initial compensable disability rating for service-connected bilateral foot condition are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, DCs 7806, 7820. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Board hearing was conducted via video conference in conjunction with the RO in St. Petersburg, Florida. A transcript of this hearing is contained within the electronic claims file. In a June 2021 Decision, the Board remanded this claim because it found that a skin examination of the Veteran's foot was warranted. The Veteran previously had been afforded an examination only for musculoskeletal conditions of the feet, but his service-connected foot disability is not a musculoskeletal oneit is one of the skin. Thus, the Board found it appropriate it obtain a skin examination so that it could rate properly the Veteran's bilateral foot disability. That examination was provided in August 2021 (discussed more fully below). Thus, because VA substantially has complied with the Board's remand directives, it may proceed with adjudication. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2013 Rating Decision on appeal awarded the Veteran service connection for his bilateral foot disability; he was assigned a noncompensable rating effective June 29, 2012. He timely appealed and seeks compensation for this condition. See April 11, 2013, Notice of Disagreement (NOD). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In addition, codes ending in "99" are for all unlisted conditions. 38 C.F.R. § 4.20. DC 7832 is applicable for hyperhidrosis of the hands, and its rating is not designed for application to the feet. Thus, the Board found in its last Decision that the most appropriate DC under which to rate the Veteran would be 78327899. See id. Therefore, it will rate his bilateral foot disability by analogy to another skin condition. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Ibid. Because the Board has determined that the Veteran must be rated under the regulations for the skin it must consider different versions of the rating criteria that have been in effect for different periods of time throughout this appeal, applying the most favorable criteria to the facts at hand. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003); VAOPGCPREC 7-2003; VAOPGCPREC 3-2000. The Board, however, may not apply any given rating criteria before its effective date. 38 U.S.C. § 5110(g). Relevant to this appeal, there were two amendments: October 23, 2008; and August 13, 2018. Thus, the Board will discuss the applicable criteria during all stages of the appeal and apply the appropriate, most-beneficial standards where applicable. Prior to August 13, 2018, DC 7820 was for infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases). Rating under DC 7820 during this time called for rating the predominant disability: disfigurement of the head, face, or neck (DC 7800); scars (DCs 78017805); or dermatitis (DC 7806) Prior to August 13, 2018, DC 7806 provided for a 60 percent disability rating with 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 immunosuppressant drugs required during the past twelve-month period. A 30 percent disability rating is warranted for 20 to 40 percent of the entire body or 20 to 40 percent of the exposed area affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the last twelve-month period. A 10 percent disability 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 twelve-month period. Because VA failed prior to the August 13, 2018, to define certain terms throughout the rating criteria for the skin, the United States Court of Appeals for Veterans Claims (CAVC) provided a framework for assessing these claims. In 2016, it held that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressant drugs. Warren v. McDonald, 28 Vet. App. 194, 19799 (2016). In 2017, the United States Court of Appeals for the Federal Circuit ruled that distinguishing treatment as either topical or systemic was no longer a binary choice. A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, meeting the definition of systemic therapy. Johnson v. Shulkin, 862 F.3d 1351, 135456 (Fed. Cir. 2017). The Federal Circuit then tied together Warren and Johnson, establishing a two-step inquiry to determine whether treatment is considered topical or systemic. First, if the medical evidence of record indicates that treatment is topical, then the Board must determine whether the treatment is of sufficient scale to affect the body as a whole. If so, then the treatment is systemic, not topical. Second, if the treatment is systemic, then the Board must determine whether the systemic treatment is like a corticosteroid or other immunosuppressant drug. Burton v. Wilkie, 30 Vet. App. 286, 29495 (2018). To the first prong, there are various ways a topical medication could be classified as systemic. For example, a topical corticosteroid could be administered on a large enough scale, Johnson, 862 F.3d at 135456, or a topical application could work by circulating through bloodstream, instead of by direct contact with the skin. Burton, 30 Vet. App. at 292. Answering these questions is a factual determination to be made by the Board, which, the Federal Circuit warned, still is prohibited from making its own medical judgments, possibly requiring the Board to obtain a medical opinion. Id. at 295 (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). Effective August 13, 2018, VA, responding to the CAVC and Federal Circuit, amended the rating criteria for the skin, in part, to include a definition of "systematic therapy" as treatment administered through any route other than the skin. 83 Fed. Reg. 32,592, 32,598 (July 13, 2018). The former rating criteria, however, which did not define "systematic therapy," are applicable to claims that were pending prior to the effective date of the new rule, when it is more favorable to the Veteran. See Burton, 30 Vet. App. at 293. After the most recent amendments, DC 7820 states that evaluation must be rated under the General Rating Formula for the Skin, which is as follows: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past twelve-month period warrants a 60 percent rating. A 30 percent rating requires characteristic lesions involving more than 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 twelve-month period. 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 warrants a 10 percent rating. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 veteran. 38 C.F.R. § 4.3. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). An October 2012 VA musculoskeletal foot examination noted that the Veteran suffers from bilateral hyperhidrosis. The Veteran complained of blisters on the bottom of his feet that are not itchy. In an August 2013 VA medical center (VAMC) entry, the Veteran denied any problems with his feet. A podiatry note from March 2015 shows complaints of left heel pain for the past six months; pain is at its worst with the first steps of the day and at the end thereof. The examiner noted that this pain likely was due to plantar fasciitis. In November 2015, the Veteran was prescribed Terbinafine 250mg oral anti-fungal medication for an infection; this prescription lasted from November 13, 2015, to December 13, 2015. January 2016 records reveal a magnetic resonance imaging (MRI) of the right ankle; the impression was (1) small joint effusion, (2) tenosynovitis of the flexor houses longus tendon, (3) small amount of fluid/edema in the distal tibialis posterior tendon compatible with partial tear, (4), tiny three-millimeter osteochondral defect involving the lateral tibial plateau, and (5) intact Achilles' tendon with mild retrocalcaneal bursitis. The Veteran ultimately was diagnosed with Achilles' tendonitis. August 2016 notes document foot pain and right ankle pain rated at least a 4/10. At his hearing, the Veteran testified that he currently sees a podiatrist, who has prescribed him special shoes, insoles, and medication for the blisters he has on his feet. Oct. 30, 2018, Hearing Transcript (Tr.) at 3, 4. He also has "itching" of the feet, which he describes as painful as an 8/10. Id. at 5. The Veteran has to change his socks multiple times a day due to moisture, and his feet get sore from walking too much. Id. at 56. November 2018 VAMC notes confirm the Veteran's left foot plantar fasciitis. A December 2020 VAMC entry noted complaints of bilateral heel pain. A January 2021 podiatry note confirms bilateral fasciitis, sinus tarsi syndrome of the right foot, bilateral ankle pain, and left foot pain. An August 2021 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner confirmed the Veteran's bilateral hyperhidrosis of the feet. The Veteran listed his current symptoms as moisture coming and going; the longer he wears his socks and shoes, the worse the moisture is. His condition is not as bad as when he is at home because he can wear his house slippers. He experiences a hot, burning/itching between his toes. He currently does not take any medication for his condition. The examiner noted the previous fungal infection, which was acute and resolved. The hyperhidrosis affects less than 5 percent of his total body area and none of his exposed area. Upon review, the examiner did note that the Veteran's socks were mildly damp; the skin of the feet was fully intact and normal in appearance and was warm and slightly moist to the touch. There were no signs of inflammation or irritation. This condition affects the Veteran's ability to work because prolonged use of socks and shoes results in symptoms of moisture, burning, and itching. Veteran confirms he receives no treatment for this condition other than changing his socks twice per day. In a September 2021 statement, the Veteran again recounted his November 2015 fungal infection previously discussed. He notes that, in October 2018, his employer wanted to change his duties, which would have required standing and walking for extended periods of time. The Veteran provided his employer with a letter from his doctor, who stated that the Veteran could not stand or walk for extended periods of time. As a result, and according to the Veteran, he was terminated five days later. He indicates that he has been prescribed Diclofenac gel cream for the pain in his feet. He also adds that being on his feet feels like walking on sandpaper and that he forgoes employment and social activities because he cannot walk for extended periods of time. The Board reiterates that the Veteran is not service connected for a musculoskeletal condition of his feet, so it cannot consider any of the associated pain he experiences in his feet due to any musculoskeletal condition. As indicated above, the Board may consider only the evidence that speaks to his skin disability. The Board finds that the most analogous condition under which to rate the Veteran is DC 7820 due to his fungal infection of the foot in late 2015, which was productive of dry, cracking skin. Additionally, the Veteran reports occasional burning/itching sensations of his feet, and that at least indicates the potential for fungal infections. As such the Board will rely on DC 7820. See 38 C.F.R. § 4.20. As discussed above, DC 7820 directs the reader to the predominant disability, and, here, that is under DC 7806, as the Veteran did endorse dry, cracking skin due to the fungal infection. There were no conditions of the head, face, or neck, and there are no scars. Because only the Veteran's feet are affected, the total body area affected is less than 5 percent. Thus, the only possible avenue for the Veteran to meet the criteria, under either the old or amended criteria, is through use of systemic therapy. As noted, under the old regulations, topical treatment can be considered systemic if the right conditions are met; under the new criteria, systemic means treatment other than topical application. Burton, 30 Vet. App. at 29495. Thus, the old criteria are more favorable for the Veteran and will be applied for adjudication purposes. See Kuzma, 341 F.3d at 1328. Assessing the record, the only time that the Veteran was receiving treatment for his bilateral skin condition of his feet was for the November 2015 fungal infection, at which point he received a one-month oral prescription. While it is not entirely clear whether that prescription is a corticosteroid or immunosuppressive drug, the Board recognizes that many fungal infections are treated with corticosteroids. Thus, it will resolve all reasonable doubt in his favor and find that his one-month prescription of Terbinafine was a corticosteroid, entitling him to a 10 percent rating for that period. See 38 C.F.R. §§ 4.3, 4.118, DCs 7806, 7820 (2018). A rating higher than 10 percent for this time is not warranted because a 30 percent rating requires use of corticosteroids for at least six weeks; the Veteran's prescription was for one month only. Either before November 13, 2015, or after December 13, 2015, however, the Veteran has not met the criteria for a compensable rating under DC 7806. There is no indication that he was prescribed or using any other medication (topical or oral) for his skin condition. While he asserted in his September 2021 statement that he was given a prescription of Diclofenac gel cream, VAMC records reveal that this was for "bilateral heel pain," and not for any problems associated with the moisture on his feet. Indeed, the Veteran conceded at the August 2021 examination that he has no treatment for his feet other than changing his socks and shoes throughout the day, and that report further confirmed that there was no current topical or oral treatment. Additionally, while the Veteran testified that he receives medication for blisters on his feet, there is no documentation in his medical records that he is prescribed any treatment for any blisters. The only blisters noted were at the time of the October 2012 VA examination, but there still was no indication that the Veteran was receiving treatment at that time. Again, the Veteran affirmatively denied treatment at his August 2021 examination. Thus, for any period other than the one granted, a compensable rating is not warranted. See id. The Board also wishes to address some of the Veteran's statements regarding his employability. Ordinarily, a claim for total disability based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curiam). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018). In his September 2021 statement, the Veteran has asserted that his service-connected hyperhidrosis is the reason he was terminated from his job; however, the Board does not see it this way. The Veteran has indicated at various points that wearing socks and shoes causes his feet to produce moisture and that he remedies this problem by changing them. He has conceded that, when at home, this problem is less severe because he simply can wear slippers. He never has indicated that increased time on his feet causes an exacerbation of the moisture in his feet. Yet, the increased time on his feet precisely is the reason he gave his former employer for not being able to change duties, which ultimately led to his alleged termination. Thus, the Board finds that these allegations are tied to the Veteran's non-service-connected musculoskeletal conditions of his bilateral feet, which have been documented and noted above. Indeed, it makes sense that additional time on the Veteran's feet would aggravate those disabilities. The same is not true, for his hyperhidrosis. In other words, if the aggravating factor for the Veteran's hyperhidrosis is the actual wearing of socks and shoes, then it is irrelevant whether he is on or off his feet; alleviation comes only from removing/changing his socks and shoes. Thus, the Board does not find that any allegation of TDIU has been raised in connection with any pending claim for an increase for any service-connected condition. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.