Citation Nr: 21076568 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-49 906 DATE: December 27, 2021 ORDER Entitlement to a compensable rating for dermatophytosis tinea corporis is denied. FINDING OF FACT The Veteran's dermatophytosis tinea corporis did not manifest in 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, and did not require systemic therapy. CONCLUSION OF LAW The criteria for a compensable disability rating for dermatophytosis tinea corporis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 2007 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these matters in January 2019 for additional development. In January 2020, the Veteran submitted a statement in support of claim withdrawing his appeal for dermatophytosis tinea corporis. The RO took no further action in initiating the withdrawal of the appeal; instead, the matter was remanded by the Board in February 2020 to request private treatment records in connection with the claim. Subsequently, the RO issued a deferred rating decision in July 2020 to obtain a medical opinion and to request the Veteran to complete a VA Form 21-4142. A supplemental statement of the case was then issued in October 2020 in which the increased rating claim for dermatophytosis tinea corporis was adjudicated. Notwithstanding the Veteran's withdrawal of the appeal submitted in January 2020, the Board accepts the current increased rating claim as within its jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board again remanded the claim in February 2020 and June 2021 for additional development. On review, the Board finds substantial compliance with its June 2021 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Initial Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating - Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected dermatophytosis tinea corporis is rated as noncompensable for the entirety of the period on appeal under DC 7899-7806. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Effective August 13, 2018, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating skin disorders. Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, VA has made clear that its intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to August 13, 2018, the Board will consider entitlement under the prior regulations as well as the updated regulations from August 13, 2018 forward, applying the most favorable criteria for the Veteran. Prior to August 13, 2018, under 38 C.F.R. § 4.118, Diagnostic Code 7806, a maximum 60 percent rating is warranted where the skin disability covers 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. A 30 percent rating is warranted where the skin disability covers 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 10 percent rating is warranted where the skin disability covers 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, 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. Under Diagnostic Code 7806 in effect from August 13, 2018, dermatophytosis tinea corporis should be evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. The General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824 provides that a maximum 60 percent rating is warranted where there are 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 involving, 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. A 30 percent rating is warranted where there are at least one of the following: characteristic lesions involving 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 10 percent rating is warranted where there are 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 determination of which criteria are more beneficial to the Veteran may depend upon how the terms "topical therapy" and "systemic therapy" are defined. Under the criteria effective from August 13, 2018, for the purposes of 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. Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of the skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. Pre-2018 regulations do not define these terms and applicable cases indicate that this determination must be made on a case-by-case basis with the examiner providing a complete rationale for the therapy classification. Warren v. McDonald, 28 Veteran. App. 194 (2016); Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For claims filed prior to August 13, 2018, caselaw indicates that systemic therapy is the type that affects the entire body in its treatment of the condition at issue, and, in determining whether a claimant is receiving such therapy, the Board must review (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). If the treatment is clearly systemic, only the second question need be addressed. Id. The United States Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under Diagnostic Code 7806. Johnson v. McDonald, 27 Vet. App. 497 (2016). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the VA Secretary that the Court erred when it "read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of systemic therapy." The Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit further explained 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." Although 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board also recognizes that a claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Entitlement to a compensable rating for dermatophytosis tinea corporis The Veteran has been assigned a noncompensable rating for the entirety of the period on appeal. The Veteran contends that a compensable rating is warranted. Turning to the evidence, the Board notes that in a March 2011 VA skin conditions examination, the examiner noted the Veteran's reports of itching and irritations over the years on the back of his neck along the hairline, that became worse on warm days when he would sweat. The treatment utilized by the Veteran was the over-the-counter shampoo as needed, and 1 to 6 weeks use of topical treatment, which was described by the Veteran to be neither a corticosteroid nor an immunosuppressive. Finally, the examiner found there was less than 5 percent of exposed body and total body affected. A March 2013 VA treatment record noted the Veteran complained of a rash that was itchy to the back of his neck. Another VA skin conditions examination was conducted in April 2019. The Veteran reported that he had regular treatment with topical cream with temporary relief, that during the summertime the lesions became more frequent, and the itchiness was more intense, and that he consulted with his primary care physicians at the VA and privately and had been prescribed with topical creams, but they usually just gave him temporary relief. The examiner noted topical use of a steroid with antifungal cream, according to the Veteran, with use 6 weeks or more but not constant. The examiner found less than 5 percent of the total body area and exposed area were affected. Under remarks, the examiner noted the dermatophytosis of the right side of the neck involved an area of 8 centimeters by 10 centimeters from his right lower hairline to over the skin around the right mastoid bone area, characterized by a very mild redness of the superficial skin with scattered areas of scaliness. The hair itself was not affected presently by the infection in this case. Another examination was provided in September 2019. The Veteran reported that since his April 2019 examination he had been provided a steroid cream by a VA dermatologist which he used for his skin condition and was effective in resolving the rash on his neck until it flared-up. The examiner noted there was no dermatology appointment or steroid cream prescription in the claims file. The examiner noted the Veteran used a corticosteroid or immunosuppressive medication, specifically a topical steroid cream, for less than 6 weeks, and no other treatments. The examiner found none of the total body or exposed area was affected. Another examination was conducted in August 2021. The Veteran reported that his flare-ups were increasing in frequency and location, occurring every two months and lasting one week, which he treated with extra topical cream. The Veteran reported that the rash was located on the right side of the face, neck, and sometimes next to nose on the left and right side, associated with itching, relief comes with a combination cream of steroid and antifungal medication which he applied twice per day. The rash was made worse with heat, outdoors, the summer season and sweat. The Veteran, for treatment, utilized corticosteroids or other immunosuppressive medications, specifically, a topical steroid and antifungal cream, which was used topically for less than 6 weeks. The specific name of the topical steroid could not be recalled by the Veteran. There was no scarring. The examiner did not indicate percentage of the total body or exposed area affected. Under remarks, the examiner noted the area where the rash would be to measure 9 centimeters by 10 centimeters extending from the right posterior neck wrapping circumferentially around the right side of the face to the nares. On examination, the examiner indicated the rash covered none of the total body or exposed areas. In a September 2021 addendum, the examiner who conducted the August 2021 examination opined that, based on her physical examination and discussion with the Veteran the total body area affected during a flare-up was most likely 4 percent and the total body area exposed during a flare-up was most likely 4 percent. Analysis On review of the evidence, the Board finds that the criteria for a compensable rating for the Veteran's dermatophytosis tinea corporis have not been met. First, the Veteran does not meet the criteria regarding the percentage of the entire body or exposed area affected. Both the prior and current versions require that the Veteran's skin disability, or their characteristic lesions, involve more than 5 percent of the entire body or more than 5 percent of exposed areas affected, and such is not shown. Rather, the evidence in this case shows that the Veteran's skin disability consistently affected less than 5 percent, and the September 2021 addendum estimated 4 percent of the Veteran's body during a flare-up. As the evidence does not show that the disability affects more than 5 percent of the body/exposed areas, a compensable rating is not warranted under the former or current DC 7806. In addition, the Board finds that the Veteran does not meet the criteria under Diagnostic Code 7806 regarding the use of systemic therapy. In Burton v. Wilkie, the Court addressed a similar issue as is present here as to what constitutes systemic therapy. First, the Court noted the "factual circumstances" discussed in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) would not be so limited as to restrict "systemic therapy" to situations involving large scale topical application because such would render much of DC 7806 redundant; thus, "the large scale application is merely an example of a factual circumstance that can convert topical treatment into a systemic therapy." Burton v. Wilkie, 30 Vet. App. 286, 291 (2018). The Court continued, finding that "to qualify as a systemic therapy it is not enough that the treatment standing alone affects the entire body. Rather, it must affect the entire body in its treatment of the condition at issue," and provided the example of a topical treatment that circulates through the bloodstream. Id. at 291-292. Here, the Board finds that not to be the case. The Board notes that the Veteran's VA treatment records do not identify a topical cream prescribed for treatment of his dermatophytosis tinea corporis. The Veteran's VA treatment records reveal the only topical treatments he was prescribed were Lidocaine and Diclofenac for treatment of his joint and extremity pain. The RO also requested a VA Form 21-4142 from the Veteran in August 2020 to obtain private dermatology records, but the Veteran did not respond. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). The March 2011 VA examination found the Veteran used a topical cream, but the examiner specifically stated it was not a corticosteroid nor an immunosuppressive drug. The April 2019 examiner noted the treatment was a steroid with antifungal cream, but the examiner classified the treatment not as a corticosteroid or immunosuppressive drug, but "other medication." However, beginning with the September 2019 examination, and again in the August 2021 examination, the examiners found the "steroid cream," as reported by the Veteran, was a topical corticosteroid or immunosuppressive drug. The Board notes that in both instances the Veteran was unable to provide the name of the steroid cream. However, the Board does not doubt the competency of the examiner and thus does not dispute the findings that the treatment was a topical corticosteroid. Therefore, from September 2019 the Veteran was being treated with topical corticosteroids. Nevertheless, such does not conclusively deem the treatment as systemic therapy. See Johnson, 862 F.3d at 1355 ("the mere possibility that the use of a topical corticosteroid could amount to systemic therapy in some cases does not mean all applications of topical corticosteroids mean systemic therapy, particularly if those uses of topical corticosteroids affect only the area to which they are applied.") (emphasis omitted). The Board must also determine whether the treatment was to the body as a whole. The treatment with topical creams was concentrated on the posterior neck, extending, at most, circumferentially to the face and around the nose, which encompassed 9 centimeters by 10 centimeters, and treated only the area manifesting the rash. See August 2021 VA examination report. Further, a simple search of the world wide web reveals an article from the Mayo Clinic, which states that "Steroid creams have been used for the past 50 years, but are not a cure because they have no effect on the underlying cause of inflammation. They can, however, be very effective in helping to control skin flare-ups and relieve symptoms, such as itching and irritation." This, the Board construes, means that topical steroid creams generally treat the external inflammation manifested by skin disorders. See Hall, M.D., Matthew, Steroid Creams Can Help with Skin Inflammation but Are Not a Cure - Mayo Clinic News Network (October 28, 2011) https://newsnetwork.mayoclinic.org/discussion/steroid-creams-can-help-with-skin-inflammation-but-are-not-a-cure/. Another article stated that "Topical steroids work by constricting capillaries and reducing localized swelling and pain." See Brannon, M.D., Heather L., How Topical Steroid Creams and Ointments Work (July 13, 2020) https://www.verywellhealth.com/how-topical-steroids-work-1068833. The Board finds that the "localized" nature of topical steroid creams further indicates that they do not affect the entire body in its treatment of the condition at issue. Therefore, under the pre-2018 regulation, the Veteran did not undergo systemic therapy for his skin condition. Additionally, a compensable rating under the current regulation for systemic therapy is not warranted. For the purposes of the current 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. In the Veteran's case, there absent evidence that the Veteran used treatment other than topical steroid creams. Therefore, a compensable rating is denied. Consideration of other diagnostic codes pertaining to the skin is not warranted as the Veteran has not been diagnosed with another condition. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). The Veteran is already in receipt of a TDIU based on his service-connected disabilities, effective January 13, 2011. Pursuant to 38 U.S.C. § 1114(s), special monthly compensation (SMC) is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i). Here, however, a TDIU was predicated not on a single disability, but on all of the Veteran's service-connected disabilities and thus the TDIU does not meet the criteria for a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes. Therefore, SMC is not warranted. Additionally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.