Citation Nr: 21077250 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-16 326 DATE: December 29, 2021 ORDER From January 30, 2014 to November 11, 2016, a 60 percent rating, but no higher, for bilateral tinea pedis of the feet with onychomycosis is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT For the entire appeal period, the Veteran's bilateral tinea pedis of the feet with onychomycosis has required constant or near-constant systemic therapy of antibiotics that are like or similar to immunosuppressive drugs; however, such did not result in disfigurement, symptomatic scarring, scarring of a size so as to warrant a separate compensable rating, or any additional disabling effects. CONCLUSION OF LAW The criteria for a rating of 60 percent, but no higher, for bilateral tinea pedis of the feet with onychomycosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to October 2000 and October 2001 to 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. In July 2021, the appellant was notified that the Veterans Law Judge who conducted the July 2016 hearing was no longer employed at the Board and afforded her the opportunity to testify at another hearing; however, in August 2021, she indicated that she did not want another Board hearing. By way of background, a rating decision issued in June 2012 by a Department of Veterans Affairs (VA) Regional Office (RO) awarded service connection for bilateral tinea pedis of the feet with onychomycosis (skin disability) with an initial noncompensable rating as of October 24, 2007. In October 2012, the Veteran entered a notice of disagreement as to the propriety of the initially assigned rating. In October 2016, the Board remanded the case for additional development, and in May 2020, awarded an initial 60 percent rating for the Veteran's skin disability for the periods of October 2, 2012 to January 29, 2014 and from November 12, 2016 to December 26, 2019, and denied an initial compensable rating prior to October 2, 2012 and from January 30, 2014 to November 11, 2016. The Veteran appealed the denial of such initial increased rating claims to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in July 2021, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the Board's May 2020 decision to the extent that it denied an initial compensable rating from January 30, 2014 to November 11, 2016. The case now returns for further appellate review. Entitlement to an initial compensable rating for bilateral tinea pedis of the feet with onychomycosis from January 30, 2014 to November 11, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. For the entire appeal period, the Veteran's bilateral tinea pedis is rated at 0 percent pursuant to DC 7813. In this regard, DC 7813 applies to dermatophytosis, to include tinea pedis, and provides that such disability is to be rated as a disfigurement of the head, face, or neck, (DC 7800), scars (DCs 7801, 7802, 7803, 7804, and 7805), or dermatitis (DC 7806) depending on the predominant disability. 38 C.F.R. § 4.118. In the instant case, as there is no evidence that the Veteran's bilateral tinea pedis results in disfigurement or scarring as determined at her November 2016 VA examination, dermatitis is the predominant disability and, thus, DC 7806 is for application. Under DC 7806, as in effect prior to August 13, 2018, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating is assigned where 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 are affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12- month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. As of August 13, 2018, Diagnostic Code 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where no more than topical therapy is 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 less than 5 percent of exposed areas affected. A 10 percent rating is assigned where there are 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 where there are 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 rating is warranted where there are 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. Under the new criteria, 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." With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the United States Court of Appeals for Veterans Claims (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 Diagnostic Code 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 Diagnostic Code 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, 30 Vet. App. 286 (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. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule 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." The Veteran's claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. Additionally, the Federal Circuit's interpretation of the term "systemic therapy" in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. The Veteran contends her skin disability is more severe than is contemplated by the currently assigned initial noncompensable rating. Specifically, she reports she continued to use an oral antifungal antibiotic, Terbinafine, throughout the appeal period. Turning to the evidence of record, the Veteran was afforded VA examination on November 12, 2016, which was the basis for the assignment of her initial rating of 60 percent as of the same date. Additionally, as noted in the introduction, in the May 2020 decision, the Board denied an initial compensable rating for the period on appeal, January 30, 2014 to November 11, 2016. In this regard, such denial was based on, in part, the lack of documentation of a prescription in VA treatment records for the oral medication, Terbinafine. However, at her November 2016 examination, the Veteran reported difficulty walking, painful prolonged standing, itchy feet that is sometimes unbearable, strong odor to feet, swelling causing additional pain, and that shoes/socks cause indentations to her feet. Upon examination, the Veteran's skin disability was noted to affect zero percent of the exposed areas and less than 5 percent of the total body area. The examiner observed that the Veteran had constant/near constant use of topical medications and topical corticosteroids in the past 12 months. Further, the examiner noted the Veteran had constant/near constant use of an oral medication, Terbinafine, in the past 12 months. In September 2021, the Veteran submitted a statement in which she testified her bilateral tinea pedis causes a significant amount of pain and discomfort, and that, when it is severe, she is prescribed Terbinafine (Lamisil tablets), which is an oral medication. Further, as she indicated at her November 2016 VA examination, she had taken Terbinafine over the 12-months preceding such examination. Based on the above, the Board finds the evidence is at least in equipoise as to whether the Veteran used Terbinafine, an oral antibiotic constituting systemic therapy, on a constant or near-constant basis throughout the entirety of the appeal period. While VA treatment records do not reflect such use on medication reconciliation notes or as having been prescribed, the Veteran reported her use of Terbinafine at her November 2016 VA examination and has submitted a statement testifying to her use during the period on appeal. Thus, the Board resolves all doubt in her favor and finds that the Veteran warrants the highest rating under DC 7806 of 60 percent under both the old and new versions of DC 7806. The Board has also considered the applicability of other potential DCs referable to the evaluation of skin disabilities. However, as the evidence of record fails to demonstrate that the Veteran's bilateral tinea pedis results in disfigurement, symptomatic scarring, scarring of a size so as to warrant a compensable rating, or additional disabling effects, she is not entitled to a higher or separate rating under DCs 7800-7805. Importantly, DC 7800 is the only potentially applicable diagnostic criteria which offers a higher rating than DC 7806. However, such a rating requires 6 characteristics of disfigurement, visible or palpable tissue loss, or gross distortion or asymmetry of three or more features or paired sets of features. The record does not reflect any characteristics of disfigurement. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral tinea pedis; however, the Board finds her symptomatology has been stable during the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor her representatives have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, based on the foregoing, the Board finds that an initial rating of 60 percent, but no higher, for the Veteran's skin disability is warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran's claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.