Citation Nr: 21069883 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-33 167 DATE: November 22, 2021 ORDER Entitlement to an increased initial rating of 30 percent, but no higher, for tinea corporis prior to September 27, 2013 is granted. Entitlement to an increased rating greater than 30 percent for tinea corporis from September 27, 2013 is denied. REMANDED Entitlement to service connection for joint pain, to include bilateral shoulder and thoracolumbar spine pain, is remanded. FINDING OF FACT During the entire appeal period, the Veteran's tinea corporis more approximately manifested by characteristic lesions involving 20 to 40 percent of his total body area; his tinea corporis was not manifested by characteristic lesions involving more than 40 percent of his entire body or exposed areas, did not require systemic therapy, and did not involve symptoms and functional impairments not contemplated by the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for tinea corporis prior to September 27, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7806 (2018, 2020). 2. The criteria for a disability rating greater than 30 percent for tinea corporis from September 27, 2013 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7806 (2018, 2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1985 to December 1992. He appeals a November 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for joint pain, and a compensable initial rating for tinea corporis prior to September 27, 2013 and 30 percent thereafter. A Board of Veterans' Appeals (Board) hearing was held in April 2018. A transcript is of record. During the Board hearing, the Veteran noted joint pain in his shoulders and thoracolumbar back and stated his tinea corporis was most active during warmer summer months. Subsequently, the Board remanded these issues in August 2018 to obtain proper medical examinations and opinions addressing the Veteran's contentions. In March 2021, the Board again remanded the issues for further development. The appeal is now back before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the new rating criteria. The Veteran was rated under Diagnostic Code 7806 for his tinea corporis. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the old Diagnostic Code 7806, a 10 percent rating was assigned for 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 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas 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 past 12-month period. Under the new Diagnostic Code 7806, the condition is evaluated under the new General Rating Formula for the Skin (Formula). Under this Formula, a 10 percent rating is warranted where at least one of the following is present: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: 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 6 weeks or more, but not constantly, over the past 12-month period. Thus, the old and new rating criteria have the same criteria regarding percentages of total exposed area and body area but differ regarding the use and definitions of topical versus systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the new Formula, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is 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." Whereas, under the old rating criteria, systemic therapy is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." Johnson v. Shulkin, 862 F.3d 1351, 1355 (2017). Thus, under the old rating criteria, topical ointments could be considered systemic if they were applied on a large enough scale and if the method by which they work treats the medical condition and affects the entire body. Burton v. Wilkie, 30 Vet. App. 286, 290 (2018). For instance, if the topical ointment works by circulating through the bloodstream, it could be considered systemic therapy for ratings purposes. Id. at 291. Whereas, under the new Formula systemic therapy is any treatment not applied topically. The Veteran had numerous VA examinations to assess the symptoms and severity of his tinea corporis during the appeal period. Prior to May 2017, the Veteran noted his rash remained constant in nature; it itched, appeared on his back and arms, and was worse in warmer months, such as during the summer. See, e.g., May 2017 VA treatment records; April 2018 Board Hr. Tr. at 6, 8. For example, in September 2013, a VA examiner found the Veteran's rash covered approximately 20 to 40 percent of his total body area and less than 20 percent of exposed area during the warmer month, whereas a December 2013 examination reflected the Veteran had no rash on exposed areas with less than 20 percent covering his total body area. The Veteran also had no rash present at a March 2019 VA examination. From May 2017, the Veteran stated his rash worsened and began to spread to his stomach and down his legs. See May 2017 VA dermatology treatment records; June 2017 Veteran statement; see also April 2018 Board Hr. Tr. at 6. In June 2017, the Veteran also submitted numerous photographs documenting how his rash had spread. He continued to state his rash primarily occurred during warm weather and not the winter months. Id. At a May 2017 VA dermatology consultation, the Veteran stated his rash was having a "good day;" the dermatologist noted rashes present only on the Veteran's posterior shoulders, medial ankles, and upper back, which is less than 40 percent of his total body area. The dermatologist prescribed triamcinolone ointment, directing the Veteran to apply the cream to "mild to moderate areas of involvement." See May 2017 VA treatment records. In June 2019, a warmer month, a VA dermatologist noted the Veteran had "hyperpigmented macules and few erythematous perifollicular papules" on his back and chest and hyperpigmented macules and patches on his "dry arms and lower legs;" however, the dermatologist did not estimate the Veteran's total body area covered by rashes. See June 2019 VA treatment records. Based on the dermatologist's description of "few" papules on his back and chest with "patches" on his arms and lower legs only, suggests the rash did not cover more than 40 percent of his total body area. Additionally, an August 2020 VA dermatology record noted VA offered a consultation for his rashes during the summer month, but the Veteran declined stating his flareups only occurred from "time to time" and "they are not always there." For example, an August 2015 VA treatment record noted the Veteran reported "no new rashes" during the summer month. In May 2021, the Veteran had an examination where the VA examiner noted no rashes on his exposed area and less than 20 percent of his total body area covered in rashes. See July 2021 VA examination report. The AOJ increased the Veteran's disability rating to 30 percent, effective the date of the September 2013 VA examination. However, the Board finds the Veteran's statements that his rash remained constant since service and his flareups occurred during warmer months, such as that during the September 2013 VA examination, credible. Thus, providing the Veteran the benefit of the doubt, his tinea corporis more closely reflects a 30 percent rating for the entire appeal period as his rash covered 20 to 40 percent of his total body area during flareups. The Board finds the Veteran is not, however, entitled to a rating greater than 30 percent. First, neither the record nor any VA examiners noted the Veteran's rash covered more than 40 percent of his exposed areas, meaning the hands, neck, and head, and the Veteran also never stated otherwise. See, e.g., September 2013 VA examination report; May 2017 VA treatment records; June 2019 VA treatment records. The record reflects most of the Veteran's rash is on his trunk and upper and lower extremities, not his head or neck. Thus, the Veteran is not entitled to a higher rating based on the percentage of exposed body area. Second, the record reflects the Veteran's rash never covered more than 40 percent of his total body area at a time. The largest total surface area recorded was at the September 2013 VA examination, where the examiner estimated the Veteran's rash covered 20 to 40 percent of his total body area. The Board finds this examination most closely approximates the total surface area covered by the Veteran's rash, despite the Veteran's credible statements that his rash spread to his legs and stomach in 2017. As noted above, the Veteran's dermatologist observed the Veteran during numerous warm months throughout the appeal period and his treatment records do not suggest his rash covered more than 40 percent of his total body area. Further, the VA examinations after his rash increased in severity still reflected it covered less than 20 percent of his total body area, even during the warmer month of May. See May 2021 VA examination report. Third, the record does not reflect the Veteran's tinea corporis required any systemic therapy, let alone constant or near-constant systemic therapy. The Veteran constantly used Bactroban, a topical antibiotic applied directly to his rash when a breakout occurred. See September 2013 VA examination report. When the rash worsened in March 2017, the Veteran was prescribed triamcinolone and the record reflects he applied an antiseptic, benzoyl peroxide, and antibiotic, clindamycin, to his skin. See May 2021 VA examination report. Under the new Formula, the Veteran is not entitled to a higher rating as the record does not reflect he received treatment administered through any route other than the skin from August 13, 2018, the date of the changed rating criteria. Under the old rating criteria, Bactroban, benzoyl peroxide, and clindamycin are also not systemic therapy as they directly target the immediate rash and do not treat the body as whole. Additionally, the Veteran's triamcinolone prescription is a topical corticosteroid ointment that is similarly applied directly to the Veteran's rash whenever it appears, and does not work on a large scale affecting the entire body, such as through absorption into the bloodstream. See Burton, 30 Vet. App. at 290. Thus, under both the old rating criteria and new Formula, the Veteran is not entitled to a rating greater than 40 percent as he does not use constant or near-constant systemic treatment. In summation, the preponderance of the evidence reflects the Veteran's service-connected tinea corporis did not meet the criteria for the next highest rating, 60 percent, as his skin condition was not manifested by characteristic lesions involving more than 40 percent of the entire body or exposed areas, and did not require constant or near-constant systemic therapy. As such, the Board grants an initial rating of 30 percent, but no higher, for tinea corporis prior to September 27, 2013, but denies a disability rating greater than 30 percent thereafter. REASONS FOR REMAND The Veteran generally contends his joint pain, to include back and shoulder pain, was caused by service. Specifically, he contends his physically demanding position as a tacfire operations specialist caused his joint pain over his eight years of service. See February 2014 notice of disagreement (NOD). He also contends his joint pain is a qualifying chronic disability under 38 U.S.C. § 1117 that resulted from his service in the Southwest Asia theater of operations during the Persian Gulf War. See April 2018 Board Hr. Tr. at 38. Finally, the Veteran contends his joint pain is secondary to his service-connected plantar fasciitis and right ankle strain. In March 2019, a VA examiner assessed the Veteran's joint pain, to include the back, shoulders, and feet. He opined that the Veteran's joint pain was less likely than not caused by service as "nothing was bookmarked in the service treatment records, so I assume he never complained about these issues," and his shoulder degeneration was "typical for his age." This opinion is inadequate as the examiner did not review the medical or lay evidence of record, did not provide adequate rationale, and failed to consider the Veteran's other theories of entitlement. The March 2021 Board Remand requested the Veteran undergo an examination to assess the nature and etiology of his joint pain, to include whether it qualified as an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI) such as fibromyalgia under 38 U.S.C. § 1117(d). In May 2021, the Veteran was examined. In July 2021, the examiner provided a negative nexus opinion noting the Veteran's joint pain did not meet the criteria for fibromyalgia and was also not directly related to his time in service. See July 2021 VA examination report. The VA examiner found the Veteran's symptoms were not an undiagnosed illness or MUCMI and noted the Veteran's joint pain had a "clear and specific etiology and diagnosis" of bilateral shoulder arthritis, bilateral impingement syndrome, and back muscle spasms that were "caused by injury, overuse, and/or wear and tear with aging." Id. Unfortunately, the VA examiner did not address whether this injury, overuse, and/or wear and tear occurred during the Veteran's eight years of active duty, which lay statements contend. Thus, this opinion is inadequate. The VA examiner also provided an inadequate opinion regarding secondary service connection by merely stating "medical literature does not support plantar fasciitis...[or] ankle conditions...causing or aggravating shoulder conditions or back condition." Without sufficient detail and rationale, the Board's evaluation of the claimed disability cannot be a fully informed one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, a remand is required. The matters are REMANDED for the following action: 1. Obtain all outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriately qualified clinician, other than the clinician who provided the July 2021 opinions, to determine the nature, etiology, and pathophysiology of the Veteran's current joint pain, to include shoulder and back pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record and examination of the Veteran, the examiner should identify all muscle and joint pain and other observed disorders. Then, the examiner should answer the following: (a) If no diagnosis is made, the examiner must opine whether the Veteran's joint pain, to include shoulder and back pain, represents manifestations of an undiagnosed illness. (b) If a clinical diagnosis for the joint pain is made, the examiner must opine: Whether is it at least as likely as not (a 50 percent probability or more) that the joint condition was incurred in or is otherwise related to his time in service, to include his February 2014 NOD contention that his joint pain was caused by his physically demanding MOS during eight years of service? AND Is the etiology OR pathophysiology of this joint condition not understood AT ALL as to this particular Veteran? (c) Is it at least as likely as not the Veteran's joint pain was (1) caused or (2) aggravated by his service-connected plantar fasciitis and/or right ankle strain? (d) Is it at least as likely as not the Veteran's joint pain, to include the back and shoulders, is attributable to fibromyalgia? The examiner is directed to consider December 2013 VA treatment record noting arthralgia and myalgia. The examiner should note the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.