Citation Nr: 21075297 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-06 555 DATE: December 20, 2021 REMANDED Entitlement to a compensable disability rating for tinea pedis, bilateral feet, is remanded. REASONS FOR REMAND The Veteran had active duty from February 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is associated with the record. Entitlement to a compensable disability rating for tinea pedis, bilateral feet, is remanded. In the June 2009 rating decision, the Veteran was granted service connection and assigned a noncompensable disability rating for tinea pedis with onychomycosis, under DC 7813, effective October 24, 2008. The Veteran avers his service-connected tinea pedis warrants a compensable disability rating. See April 2021 Hearing Transcript. The Veteran was afforded a VA examination in May 2009. The VA examiner noted onychomycosis with chronic tinea pedis of the bilateral plantar feet. The Veteran reported his condition improving over time but flaring intermittently. The VA examiner reported diffuse scaling of the plantar feet with sublingual hyperkeratosis of the bilateral toenails. The VA examiner noted that the Veteran's tinea pedis has not required any oral or topical treatment, other than vinegar foot soaks, in the past year. The VA examiner reported that the Veteran's tinea pedis covers 2 percent of his total body surface area and three percent of exposed body surface. The Veteran was afforded a VA examination in June 2021. The VA examiner noted a diagnosis of tinea pedis. The Veteran reported current foot pain, making it unable for him to walk, and using Blue Emu oil and Dupixent. The VA examiner noted that the Veteran's skin condition requires topical steroid as treatment six weeks or more, but not constant. The VA examiner reported that tinea pedis covers less than five percent of the Veteran's exposed area. Following the examination, the VA examiner reported that the Veteran's diagnosis has progressed, now involving all the foot surface area, bilaterally. The Veteran's service-connected skin disability is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813. The Board notes the regulations pertaining to skin disabilities were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32,593. The Veteran's claim was granted in June 2009 and was pending prior to August 13, 2018; as such, it must be considered under both rating criteria. The Board observes that under both the current and prior rating criteria, DC 7813 provides two potential avenues for evaluating a skin disability, the percentage of the body (or exposed areas) affected and the frequency of use of systemic therapy. However, the term ''systemic therapy'' is only defined under the current regulations. In evaluating skin disabilities under the rating criteria in effect prior to August 13, 2018, the Board must consider the applicable jurisprudence. In Warren v. McDonald, 28 Vet. App. 194 (2016) the Court held that "systemic therapy" for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is "like" a corticosteroid or other immunosuppressive drug to determine whether such treatment was a systemic therapy. Subsequently, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that the "use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case." Additionally, the Federal Circuit stated that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. Further, the Court has held that when determining whether topical treatment for a skin disorder constitutes systemic therapy such as corticosteroids or other immunosuppressive drugs, it must be determined (1) whether the topical treatment operates by affecting the body as a whole in its treatment of the condition at issue, and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, Vet. App. No. 16-2037 (Sept. 28, 2018) (citing Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017); Warren v. McDonald, 28 Vet. App. 194 (2016)). In light of the Federal Circuit's holding in Johnson and the Court's holding in Burton, the Board finds an additional VA examination is necessary to determine whether the Veteran's use of topical steroids and medication, in this case, operate by affecting the body as a whole in treating his skin condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tinea pedis. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the pertinent rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Based on a review of the evidence of record, Veteran's statements, and examination results, the examiner should: State an opinion with respect to whether the Veteran's use of topical steroids and medications affect his body as a whole in its treatment of the service-connected tinea pedis. Discuss all the medications used for the Veteran's service-connected skin disability and state whether any of these medications (1) operate by affecting the body as a whole in treating his skin condition and (2) are "like" a corticosteroid or other immunosuppressive drug. The examiner must provide a complete rationale for all proffered opinions. 2. Upon completion of the above, readjudicate the claim on appeal. If the benefit sought is not granted in full, provide the Veteran with a Supplemental Statement of the Case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.