Citation Nr: 21073448 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-19 087 DATE: December 8, 2021 ORDER Entitlement to an initial compensable rating for right foot plantar warts is denied. Entitlement to an initial compensable rating for left foot plantar warts is denied. FINDING OF FACT 1. The Veteran's right foot plantar warts are not manifested by involving 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. 2. The Veteran's left foot plantar warts are not manifested by involving 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. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for right foot plantar warts are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, 4.118, Diagnostic Code (DC) 7820. 2. The criteria for an initial compensable rating for left foot plantar warts are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, 4.118, DC 7820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2002 to September 2007, from April 2010 to February 2011, from January 2013 to September 2013, and from September 2018 to March 2019. These matters are on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) regional office (RO). These matters have been before the Board many times, most recently in April 2021 when they were remanded for further development. This development has been accomplished and the matters are again before the Board. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's bilateral foot plantar warts are both rated as noncompensable under DC 7820. DC 7820 provides that infections of the skin not listed elsewhere should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. The Board notes that the Veteran's warts do not affect his head, face, or neck and are not scars of any form. Thus, the Board finds the most applicable DC is DC 7806. DC 7806 provides that dermatitis involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensable. Dermatitis involving 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, is rated 10 percent disabling. Dermatitis involving 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, is rated 30 percent disabling. Dermatitis 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 such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under Diagnostic Code 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. The Court also clarified that in applying the old regulations, the Board must determine whether a given treatment is "like" a corticosteroid or other immunosuppressive drug in determining whether the treatment constituted a systemic therapy to warrant a higher rating. Id. With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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." Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. On July 13, 2018, VA issued a final rule amending its regulations covering skin disabilities. The effective date of this final rule is August 13, 2018. Under the final rule, claims pending prior to the effective date of this final rule will be considered under both old and new rating criteria. Under the new 38 C.F.R. § 4.118, 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. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018) (to be codified at 38 C.F.R. pt. 4). Under both versions of DC 7806, "exposed areas" are defined as the head, neck, and hands. 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." The Veteran contends that his plantar warts are worse than indicated by his noncompensable rating. On multiple occasions, the Veteran stated his warts warranted a 10 percent disability rating. (See e.g. December 2014 correspondence, April 2016 Form 9.) The Veteran had a skin examination in May 2014. The examiner noted the Veteran had plantar warts, which the Veteran reported were recurrent. The Veteran had treatment including chemical and freezing, but they returned. These warts did not affect his head, face, or neck and the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The freezing treatment lasted less than six weeks and the Veteran had not had any debilitating or non-debilitating episodes due to his warts. In April 2016, the Veteran submitted a private examination for his plantar warts. The examiner did not review the claims file, but did review the Veteran's VHA medical records. The Veteran reported he had multiple treatments without improvement and had sharp pain when walking. The Veteran had an examination for his plantar warts in August 2021. The examiner reviewed the Veteran's file, noting the Veteran had used topical cream and had had a period of remission but had recently had some renewed activity. The examiner noted the Veteran had three areas on the right foot and two on the left. The examiner recommended repeat clinical treatment every three to six weeks and a home wart regimen with soak, scrape, acid, tape daily. The Veteran reported when warts are present, they cause pain with weight bearing and interfere with activity. The examiner noted the Veteran used topical medications six weeks or more in the past 12 months, but no constant. and another type of topical medication used less than six weeks. The examiner also noted the Veteran had been treated with liquid nitrogen in November 2020 for less than six weeks. The examiner reported the Veteran's condition affected less than five percent of his total body area with zero exposed area. The Veteran did not have visible characteristic lesions, no tumors or neoplasms, no scars or disfigurements on his head, face, or neck. The Veteran's medical records show he continues to seek treatment for his plantar warts. This includes surgical excision and topical creams applied daily. In April 2018, the Veteran reported podiatry indicated concerns for need for systemic therapy based on problem despite application of topical therapies and pairings of the lesions. The Veteran also had been recommended to seek clinical treatment every three to six weeks and treat his warts at home daily. (See e.g. December 2015, March 2016, February 2017, April 2018, August, November 2020 treatment records.) The Board has considered all of the evidence of record, including the Veteran's statements. It is clear the Veteran's warts continue to be a problem for him and that he continues to treat them with topical creams and excisions. However, the evidence doesn't show the warts cover at least five percent but less than 20 percent of the entire body or at least five percent but less than 20 percent of exposed areas. The evidence also does not indicate the Veteran uses intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12 month period. The evidence does not indicate the Veteran uses systemic therapy as defined by the regulations discussed above. While some notes from his podiatrist indicate they may need to be more aggressive with treatment of his warts and introduce some other therapies into his regime, the evidence does not indicate the Veteran uses corticosteroids or other immunosuppressive drugs to treat his condition. The evidence does show the Veteran uses topical creams to treat his condition, but the use of topical therapy warrants a noncompensable rating. The Board has considered whether the Veteran's various topical medications warrant a higher rating. However, the evidence shows the Veteran only uses topical medication on his feet which does not qualify as systemic for VA purposes. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). It is undisputed that the Veteran's use of topical creams is constant or near-constant. However, this does not qualify as systemic therapy, as it is applied only to the affected areas of the body (i.e. the feet and hands). Regarding the claims above, the Board acknowledges the Veteran's statements that his warts cause pain, that he continues to seek treatment, and that he believes they warrant a 10 percent disability rating. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his health conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations and medical treatment records on file and has weighed them as discussed above. The Board also finds the VA examinations to be adequate as the examiners reviewed the Veteran's file, accounted for his statements as well as his medical history, and performed all necessary testing. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his plantar wart condition warrants a higher rating. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). This includes whether the Veteran's plantar warts should be rated under a foot disability as the Veteran submitted a foot disability examination showing the effects of his warts on his feet. However, the Veteran's conditions do not approximate any of the disabilities for which the feet can be rated and the Board finds he is most appropriately rated under his current diagnostic code. The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran does not currently meet the schedular criteria for a TDIU and the matter has not been expressly raised by the Veteran or the record. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.