Citation Nr: A21019651 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 200707-102913 DATE: December 9, 2021 ORDER Entitlement to a rating in excess of 30 percent, but not higher, for a skin disorder is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent for a skin disorder from September 11, 2020 is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 11, 2020, the Veteran's skin disorder required systemic therapy for a total duration of 6 weeks or more, but not constantly over the past 12-month period. 2. From September 11, 2020, the Veteran's skin disorder required systemic therapy for a total duration of 6 weeks or more, but not constantly over the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 30 percent, but not higher, for a skin disorder are met prior to September 11, 2020. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.102, 4.7, 4.118, Diagnostic Code 7813. 2. The criteria for a rating in excess of 30 percent for a skin disorder from September 11, 2020 have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.102, 4.7, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. The Agency of Original Jurisdiction (AOJ) denied the claim in a June 2020 rating decision. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran selected the evidence submission lane on his July 7, 2020 Notice of Disagreement (NOD). In adjudicating the claims, the Board may consider evidence associated with the record at the time of the June 2020 rating decision, evidence submitted by the Veteran or his or her representative with the NOD, and evidence submitted by the Veteran or his/her representative within 90 days following receipt of the NOD. The Board observes that the Veteran has been represented by Disabled American Veterans since November 2017. In August 2021, he submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of The American Legion. However, as the Veteran's current appeal was docketed at the Board in November 2020, and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, DAV retains representation of the Veteran in the instant appeal. 38 C.F.R. § 20.1305(a), (b); see e.g. Perez v. Shinseki, 25 Vet. App. 190 (2011) (the Board did not err in denying claimant's request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). Entitlement to a disability rating in excess of 10 percent prior to September 11, 2020 and in excess of 30 percent thereafter for a skin disorder The Veteran contends that his skin disability warrants an increased rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If there is a question as to which of two evaluations shall be applied, 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. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA received the Veteran's claim on May 7, 2020. The Veteran's disability was rated as 10 percent disabling according to Diagnostic Code 7813-7806. 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 rating assigned. The additional code is shown after the hyphen. 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 pending before the agency of original jurisdiction (AOJ) on or after August 13, 2018. The Veteran's application was received on May 7, 2020; therefore, the new regulations apply. Diagnostic Code 7813 directs VA adjudicators to evaluate dermatophytosis under the General Rating Formula for the Skin. Under this formula, a 10 percent rating is assigned when the record demonstrates at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body or exposed areas affected; or (2) intermittent 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 for a total duration of less than 6 weeks over the past 12-month period. Next, a 30 percent rating is assigned when the record demonstrates that one of the following is present: (1) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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. Lastly, a 60 percent rating is assigned when the record demonstrates that at least one of the following is present: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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 Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118. See 38 C.F.R. § 4.118. Under these regulations, "systemic therapy" is defined as "treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin," and "topical therapy" is defined as "treatment that is administered through the skin." See 38 C.F.R. § 4.118(a). Turning to the medical evidence of record, a June 2020 VA Skin Diseases Disability Benefits Questionnaire documented weekly wraps with silver solution and collagen; 30-day antibiotics-since April 2020; ulceration of the left lower leg; and constant/near-constant use of topical Gold Bond and Caladryl for relief of itching of the bilateral feet and ankles for the past 20 years. The examiner diagnosed the Veteran with dermatophytosis; chronic tinea pedis. Physical examination revealed approximate total body area of less than 5 percent and approximate total exposed body area of less than 5 percent. The examiner indicated that dermatophytosis included areas of hyperpigmentation (medium brown to purple) of the lower legs and feet and ranging from pinpoint size to 6 cm w x 25 cm, lesions extending down the medial side of the right lower leg to the foot; additional redness and scaling throughout; and purple, red, and brown discoloration at the base of the toes bilaterally. The examiner indicated that the Veteran's skin condition did not cause scarring. The examiner indicated that the ulcers were not visualized (because the left leg was wrapped) but that photographs were included in the file. The examiner indicated that the Veteran reported that the rash was uncomfortable, and walking is painful. In October 2020, the Veteran attended an additional VA examination. This examination took place within 90 days of the Veteran's notice of disagreement. Therefore, the Board will consider this evidence. The examination report showed that the Veteran took Benadryl to treat the symptoms of his disability. The Veteran also used constant/near constant topical treatments. The examiner also indicated that the Veteran takes Cephalexin 500mg and TMP-SMZ 800mg twice daily. The examiner also indicated that the Veteran received a debridement procedure. Lastly, the examiner indicated that the Veteran's skin disability affects 5 to less than 20 percent of the Veteran's total body area. Private treatment records document debridement of two wounds on the left lower extremity from May 2020 to July 2020. See May 2020 to July 2020 Prisma Health Tuomey Hospital Wound Healing Center Records. Private treatment records also document that the Veteran was treated with Cephalexin 500 mg (antibiotic) and TMP-SMZ 800n mg (antibiotic) twice daily while at the wound healing center. In sum, after review of the evidence, the Board finds that prior to September 11, 2020, the Veteran's disability remained consistent and an increased rating is warranted. The Board finds that the Veteran's disability is best represented by a 30 percent rating. As indicated above, under Diagnostic Code 7813, a 30 percent rating is assigned when the record demonstrates that systemic therapy is required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The June 2020 VA Skin Disease Disability Questionnaire documented that the Veteran was treated with systemic therapy in the form of antibiotics since April 2020. The Board has also considered a rating in excess of 30 percent for this period of the appeal; however, the evidence of record does not show that the Veteran's disability exhibits 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. Lastly, 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. Accordingly, the Board finds that the criteria for a 30 percent rating, but not higher, has been met. The Board has also considered a rating in excess of 30 percent since September 11, 2020. After a review of the record, the Board finds that the Veteran's disability has remained consistent and an increased rating is not warranted. Specifically, the evidence of record does not show that the Veteran's disability exhibits 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. Lastly, 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. Therefore, for the above stated reasons, the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 30 percent for a skin disability since September 11, 2020. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to TDIU must be remanded to a correct duty to assist error that occurred prior to the June 2020 rating decision on appeal. The evidence shows that the Veteran's skin disorder impacts his ability to work in that it is uncomfortable and walking 100 yards is painful. See June 2020 VA Skin Diseases Disability Benefits Questionnaire. When evidence of unemployability is submitted during the appeal for an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, a remand is warranted to further develop and adjudicate the issue of entitlement to TDIU. The matters are REMANDED for the following action: Ask the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and conduct any appropriate development of the TDIU claim. Michael L. Rescan Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.