Citation Nr: 21074403 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-34 983 DATE: December 15, 2021 ORDER Entitlement to an initial compensable rating for tinea pedis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's tinea pedis is manifested by no more than non-steroidal topical ointment treatment and covers less than five percent of the total body area, none of which is in an exposed area. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for tinea pedis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2003 to December 2006 and from May 2009 to May 2012. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). In August 2021, the Board remanded the appeal for a new VA examination to determine the current severity of the Veteran's service-connected tinea pedis. There has been substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an initial compensable rating for tinea pedis. The Veteran contends that he is entitled to a higher rating for his tinea pedis than what is currently reflected. The Veteran's tinea pedis is rated under Diagnostic Code 7813, for dermatophytosis. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7813, instructed to rate as disfigurement of the, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Code's 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Here, the evidence of record demonstrates that the predominant disability dermatophytosis which is most analogous to dermatitis under Diagnostic Code 7806 prior to August 13, 2018, as the Veteran's disability was not shown to be manifested by scarring or involving disfigurement of the face or neck. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than five percent of the entire body or less than five percent of exposed areas affected, and no more than topical therapy required during the past 12 months. A 10 percent rating is 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. A 60 percent rating is assigned for 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. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Code's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state 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. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for 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 rating is assigned for at least 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, 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 assigned at least one of the following: 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 12-month period. A 60 percent rating is assigned for 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Code's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's tinea pedis does not more nearly approximate 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. Here, the November 2012 VA examination report notes the Veteran was prescribed medicated talcum powder for his athlete's foot. He did not have any scarring or disfigurement of the head, face, or neck. There was no benign or malignant skin neoplasms or any systemic manifestations due to any skin disease. There was no use of oral or topical medications in the past 12 months for any skin condition or any treatments or procedures other than systemic or topical medications in the past 12 months. The Veteran did not have any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. On physical examination, the examiner did not indicate that the Veteran had any visible skin conditions that affected the total body area or face, neck, or hands. There were no tumors or neoplasms associated with the Veteran's skin disability and the examiner concluded that the Veteran's skin disability did not impact his ability to work. Treatment records from 2012 to 2018, continue to note the Veteran did not have any rashes, nonhealing lesions, pallor, or urticaria of the skin. The Board also finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran's tinea pedis does not more nearly approximate (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. October 2018, VA treatment records note the Veteran had cracked skin over his last three toes on his right foot and his was prescribed tolnaftate cream and Vitamins A and D were added for skin regeneration for his dermatomycosis of the right foot. A September 2021 VA examination report notes the Veteran was prescribed topical antibiotic ointment that was used for six weeks or more, but not constant. The Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. On physical examination, it was noted the Veteran's dermatophytosis only affected less than five percent of the total body area and none of the exposed area. There were no visible characteristic lesions. The Veteran was noted to have cracked skin over the bilateral feet. There were no other skin conditions attributable to the Veteran's skin disability. There were no tumors or neoplasms or scarring or disfigurement and the Veteran's skin disability did not impact his ability to work. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include that he has itching of the feet, his feet peel constantly and he gets cracks between his toes and heels, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran's disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for tinea pedis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU is remanded. Here, the record contains the Veteran's VA form 21-8940 Veterans Application for Increased Compensation Based on Unemployability from November 2013. This form indicates the Veteran last worked full time in 2012. However, the record reflects the Veteran's reports of being employed as a private security guard in 2018. As there is no updated information concerning the Veteran's current employment information or status, the Board finds a remand is required to obtain this information prior to the adjudication of the claim. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. 2. Request the Veteran submit an updated VA Form 21-8940 and a VA Form 21-4192 and inform him of the elements necessary to support a claim for TDIU. 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.