Citation Nr: 21071657 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-53 308 DATE: December 1, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a disability manifested by dizziness, to include peripheral vestibular disorder (PVD), is remanded. FINDING OF FACT Throughout the period on appeal, the preponderance of the evidence does not show that the Veteran's tinea versicolor has manifested to at least 20 percent or more of the entire body, at least 20 percent or more of exposed area affected, treated with anything other than topical therapy during the past twelve-month period, scars that were unstable or painful, or disfigurement of the head, face, or neck with at least one characteristic of disfigurement. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an initial disability rating in excess of 10 percent for tinea versicolor have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7817-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in April 2020 for further development. The Board is satisfied that there was substantial compliance with the prior remand with regards to the increased rating claim for tinea versicolor. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran testified at a Central Office hearing before the undersigned in March 2020. A transcript is of record. Although the issue certified to the Board was for vertigo, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. Increased Rating 1. Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). The Veteran's tinea versicolor is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Codes 7817-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In this case, the hyphenated code indicates that the Veteran's disability is evaluated as dermatitis or eczema found under Diagnostic Code 7806. The Board notes that the criteria for rating skin disabilities have changed once during the period covered by this appeal, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). In cases where rating criteria are amended during the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the regulations in effect prior to August 13, 2018, Diagnostic Code 7806 provided that a noncompensable rating was warranted if less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during past 12-month period. A 10 percent disability rating was warranted if 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 disability rating was warranted if 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. A 60 percent disability rating is warranted if 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. 38 C.F.R. § 4.118. The Board notes that the Court issued a decision in Johnson v. McDonald, 27 Vet. App. 497 (2016) that reversed and remanded an April 2014 decision of the Board denying an increased rating for a skin condition under 38 C.F.R. § 4.118, Diagnostic Code 7806. VA disagreed with the Court's decision and appealed it to the Federal Circuit. In July 2017, the Federal Circuit issued an opinion that reversed the decision by the Court, noting that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit went on to explain that "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. As such, the Board is bound by the Federal Circuit's interpretation. Effective August 13, 2018, skin disabilities rated under Diagnostic Code 7806 were evaluated under the General Rating Formula for the Skin. A noncompensable disability rating is warranted if there no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent disability rating is warranted if there is one of the following: 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 disability rating is warranted if there is one of the following: 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. A 60 percent disability rating is warranted if there is at least one of the following: 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Alternatively, both the pre-August 13, 2018 and post-August 13, 2018 rating criteria states to rate dermatitis or eczema (Diagnostic Code 7806) as disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801 through 7805, depending upon the predominant disability. Id. Thus, these new rating criteria for skin conditions are very similar to the pre-2018 rating criteria, except that VA provided a specific definition of what is meant by systemic therapy and examples of types of systemic therapy. However, in this case, the evidence does not demonstrate burn scars or scars due to other causes, not of the head, face or neck, that are deep and nonlinear or associated with underlying soft tissue damage (Diagnostic Code 7801), burn scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear or not associated with underlying soft tissue damage (Diagnostic Code 7802), and scars that are unstable or painful (Diagnostic Code 7804), thus the Diagnostic Codes pertaining to such impairments are not applicable. Under both the pre-August 13, 2018 and post-August 13, 2018, Diagnostic Code 7800 provides that a 10 percent rating is warranted where there is one characteristic of disfigurement. A 30 percent rating is warranted where there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted where there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted where there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. Under both the pre-August 13, 2018 and post-August 13, 2018, Diagnostic Code 7805 provides that the effects of scars other than those listed in Diagnostic Codes 7800, 7801, 7802, and 7804 are to be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In a February 2018 VA examination, the Veteran reported that he used selsun daily and tacrolimus as needed. At the time of the examination, he had small spots on his thighs, arms, and face, specifically scattered round pale areas on the thighs, arms, ankles, back, neck, and face. Some areas had a raised rough feel. The location of his skin condition varied and flared during the summer. The examiner found that the Veteran's tinea versicolor did not cause scarring or disfigurement of the head, face, or neck. Further, he did not have any systemic manifestations due to his skin condition. The examiner found that the Veteran's tinea versicolor was treated with systemic corticosteroids or other immunosuppressive medications (tacrolimus) for less than six weeks in the past 12 months and other topical medications constantly or near-constantly (selsun). The Veteran's tinea versicolor covered 5 to 20 percent of total body area, but less than 5 percent of the exposed area. In the February 2018 notice of disagreement, the Veteran contended that his tinea versicolor covered over 30 percent, 60 percent, or over 80 percent of his face, including his lips. He also contended that he underwent systemic therapy with corticosteroids for more than six weeks a year. Specifically, he used tacrolimus topical ointment at least twice a week for the past year. At the March 2020 hearing, the Veteran reported that he used tacrolimus, an immunosuppressant, every day since the late 1980's, which was at least six weeks out of the year. He stated that his skin condition was all over his body and that some of his body had lost color in the skin. The Veteran stated that his skin condition was all over his face and nose. It would start as scaly and then turn into a sore. Then, he would lose color in his skin. He reported bad flare ups which resulted in him taking selenium sulfide, which he left on his face all night. This burned his face and caused scabs all over his face. His flare ups occurred in the summer. His medications were not as effective, and now had to use both of them. In a September 2020 VA examination, the Veteran reported that he used tacrolimus immunosuppressant and Nizoral shampoo. The examiner found that the Veteran's tinea versicolor resulted in hypopigmented areas around his eyes and along the sides of his nose. Further, the examiner found that it did not cause scarring or disfigurement of the head, face, or neck. The Veteran's tinea versicolor was treated with a topical anti-suppressant (tacrolimus) constantly or near-constantly and a topical Nizoral shampoo constantly or near-constantly. His skin condition covered less than 5 percent of his total body area and exposed area. Post-service VA treatment records show that the Veteran's selenium sulfide (lotion or shampoo) was to be applied externally to the affected area and lathered with small amounts of water. His tacrolimus was to be applied externally twice a day, specifically to his lips and affected area of his face. The Veteran was diagnosed with seborrheic dermatitis with possible tinea versicolor, vitiligo, and nummular dermatitis. According to a March 2019 skin examination, the Veteran had small, barely hypopigmented macules on his face, a flat patch of hyperpigmented skin with uneven color on his left forearm, and thickened scaling skin on his right elbow. The Veteran reported that he used tacrolimus intermittently and sparingly for lesions with some resolution. According to a July 2019 skin examination, he had hypopigmented macules on the upper and lower lip and erythema involving the nasolabial folds. In February 2020, the Veteran presented for follow up of seborrheic dermatitis behind his ears, around his nose, and on his beard area. According to a February 2020 skin examination, he had hypopigmented macules on the upper and lower lip, erythema involving the nasolabial folds, and round, well-demarcated lichenified plaques on the right and left dorsal upper arms. In May 2020, the Veteran reported to the emergency department for severe peeling of the facial skin, swelling of the cheeks and lips, and oozing fluid from the skin between the nose and lips. He was assessed with dermatitis. Since his urgent care visit, his rash seemed to have stabilized with no major pain or peeling. Based on the foregoing, the Board finds that an initial disability rating in excess of 10 percent for tinea versicolor is not warranted. The evidence of record, including the VA examinations, do not show that the Veteran's tinea versicolor affected at least 20 percent of his total body area or total exposed area. Additionally, it does not appear that his tinea versicolor caused a disfigurement of his head, face, or neck that resulted in at least one characteristic of disfigurement or visible or palpable tissue loss, or resulted in scars that were unstable or painful. Further, while the February 2018 VA examiner noted that the Veteran required systemic corticosteroids or other immunosuppressive drugs (tacrolimus) and the September 2020 VA examiner found that the Veteran used tacrolimus constantly or near-constantly, contemporaneous treatments records indicate that tacrolimus was a topical ointment applied to the Veteran's face. As such, the Veteran's treatment involving tacrolimus cannot be considered to be systemic treatment with a corticosteroid or immunosuppressant. Johnson, 862 F.3d at 1354 56. As such, the record shows that the Veteran's tinea versicolor was treated with topical medication, not systemic therapy, such as immunosuppressant drugs. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. Thus, it can only be applied in this matter from August 13, 2018, forward. The amended rating criteria clarified that 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. As the Veteran's treatment is administered through the skin, the Board concludes that the application of the amended rating criteria does not result in a higher disability rating for the Veteran's tinea versicolor from August 13, 2018, forward. While the Board notes that the VA treatment records show that the Veteran developed severe peeling of the facial skin, facial swelling, and oozing fluid in May 2020, the records show that this was not due to the Veteran's service-connected tinea versicolor, but another, non-service-connected skin disability, specifically dermatitis. In sum, the preponderance of the evidence weighs against finding that an initial disability rating in excess of 10 percent is warranted for the Veteran's tinea versicolor. Consequently, the benefit-of-the-doubt rule does not apply and an initial disability rating in excess of 10 percent is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In its April 2020 decision, the Board remanded the service connection claim for bilateral hearing loss as the examiner had not considered the Veteran's lay statements regarding how his hearing loss was due to his acoustic trauma from weapons training and being in close proximity to "helicopters, harriers, and the OV-10." The Veteran had also submitted an article regarding the noise levels of common army equipment. The Board also advised the examiner that the Veteran's lay contentions had to be considered and weighed in determining the etiology of the Veteran's hearing loss and that the lack of documented hearing loss during service could not serve as the sole basis for a negative finding. The May 2020 supplemental opinion attributed the Veteran's hearing loss to his history as a fire fighter, but only noted that the Veteran reported noise exposure during service. It does not appear that the examiner considered or weighed the Veteran's lay statements. Further, the examiner did not consider the article regarding the noise levels of common army equipment. Additionally, the September 2020 supplemental opinion appeared to be solely based on the lack of documented hearing loss during service. As such, a remand is warranted to obtain a supplemental VA opinion. 2. Entitlement to service connection for a disability manifested by dizziness, to include peripheral vestibular disorder (PVD), is remanded. In the August 2020 and October 2020 VA opinions, the examiner found that a diagnosis of vertigo was not warranted, but that a diagnosis of peripheral vestibular disorder was warranted. He also opined that it was less likely than not that the Veteran's peripheral vestibular disorder was due to his service. However, he did not consider the Veteran's lay statements indicating that he experienced dizziness during service. As such a remand is warranted to obtain a supplemental VA opinion. The matters are REMANDED for the following action: 1. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's hearing loss. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should opine whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's bilateral hearing loss was incurred in or otherwise related to his service. In providing this opinion, the examiner must consider the Veteran's contentions regarding noise exposure during weapons training and being in close proximity to "helicopters, harriers, and the OV-10." The examiner should also consider the article the Veteran submitted in November 2018 regarding noise levels of common army equipment. The examiner is reminded that the lack of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered in making the determination as to whether a nexus exists between the claimed bilateral hearing loss and military service. A complete rationale must be given for all opinions and conclusions expressed. 2. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's peripheral vestibular disorder. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should opine whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's peripheral vestibular disorder was incurred in or otherwise related to the Veteran's service, to include as due to an inner ear injury incurred due to loud noise exposure in service. If it is determined that there is another likely etiology for the Veteran's disability, that should be stated. The examiner should address the Veteran's lay statements regarding experiencing dizziness during service. A complete rationale must be given for all opinions and conclusions expressed. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.