Citation Nr: 21006878 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-22 551 DATE: February 5, 2021 ORDER A 10 percent rating for fungus infection from October 5, 2012, to January 30, 2013, is granted, subject to the controlling regulations governing the payment of monetary benefits. A rating in excess of 10 percent for fungus infection from January 30, 2013, is denied. FINDING OF FACT From October 5, 2012, the Veteran’s chronic fungus infection has been manifested by total body area greater than 5 percent but less than 20 percent, but no more. CONCLUSION OF LAW The criteria for a rating of 10 percent for chronic fungus infection, but no more, have been met from October 5, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1943 to November 1945. The case has been before the Board three times, in November 2017, December 2018, and September 2019. The most recent remand also involved the issue of service connection for a fungus infection of the ears. The issue related to the fungus infection of the feet and groin was remanded as being possibly intertwined with the matter related to his ears. After examination, service connection was established for a fungus infection of the ears, rated 10 percent disabling under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6210, applicable to chronic otitis externa. See September 2020 rating decision. As advised in the September 2020 rating decision and notification letter, that award constituted a total grant of the benefit sought and the Veteran has not appealed the initial rating awarded under this diagnostic code. Fungus infection of the feet and groin The Veteran contends that the fungal infection of his feet and groin is more disabling than currently evaluated. It is asserted that the Veteran utilizes hydrocortisone cream to treat his disability. The Veteran’s chronic fungal infection is rated under Diagnostic Code 7813 for tinea. That rating was, in turn, evaluated under Diagnostic Code 7806 for dermatitis. 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 (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. As noted, the evidence of record demonstrates that the predominant disability is dermatitis. For the period prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 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 (DC 7800) or scars (DC’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: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (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 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: (1) characteristic lesions involving more than 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. A 60 percent rating is assigned for at least one of the following: (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 (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Service connection for a fungal infection of the feet was granted by rating decision dated in November 1945. A 10 percent rating was originally assigned, but this was reduced to noncompensable in 1948. The Veteran’s claim for an increased rating was received on October 5, 2012. In a July 2018 rating decision, the Veteran’s disability rating was increased to 10 percent, effective January 30, 2013. Therefore, his fungal infection is currently assigned a 0 percent rating from October 5, 2012 (date of claim) to January 30, 2013, and a 10 percent rating from that date. An examination was conducted by VA in November 2012. At that time, the diagnosis was onychomycosis of bilateral toenails. It was noted that the Veteran had been treated with oral or topical medications in the past 12 months; this was specified as Lamisil cream daily on a constant or near constant basis. The examiner stated that the Veteran had not had any debilitating or non-debilitating episodes over the past 12 months. Total body area of infections of the skin was noted to be less than 5 percent. The examiner described the skin condition as a fungus of all toenails. In a January 2013 rating decision, the noncompensable rating for fungus infection of the feet was confirmed and continued. The Veteran submitted a Notice of Disagreement (NOD) with the decision in January 2013, noting that the fungus affected his ears and groin as well as his feet and that it had worsened and that he utilized hydrocortisone cream as treatment. [As noted at the outset, the Veteran has since been awarded a separate award of service connection for chronic otomycosis (claimed as fungus in the bilateral ears).] An examination was conducted by VA in March 2014. At that time the diagnoses were dermatitis of the ears and bilateral genital and testicular warts. The Veteran was taking the oral medication Cipro for his skin condition for less than 6 weeks over the past 12 months. Physical examination showed a total body area of eczema of between 5 percent and 20 percent. Other infections of the skin were noted to involve less than 5 percent of total body area. No exposed areas were identified. VA outpatient treatment records show that prior to May 2014, the Veteran had declined examination of the lower extremities, groin and buttocks. At that time, however, he was seen for itching and irritation in the groin when it was reported that he had a history of tinea cruris on-and-off over the years. This was likely from chronic onychomycosis and was stated to resolve with topical Lamisil cream. An examination was conducted by VA in February 2018. At that time, the diagnosis was tinea pedis, capitis and cruris. The examiner noted that the Veteran had developed a chronic skin infection while serving in the South Pacific during World War II that started in his feet then developed in the external ear canals as well as the scrotum and medial groin areas. The Veteran had been treated with oral or topical medications over the past 12 months, for six weeks or more, but not constantly. Infections of the skin were noted on between 5 percent and less than 20 percent of total body area. This was noted to be bilateral moderate tinea pedis involving the web spaces and the posterior plantar and dorsal foot surfaces, severe bilateral toenail onychomycosis of all toes, bilateral mild scrotal and groin tinea cruris. An examination was conducted by VA in May 2019. The diagnoses were fungal condition of the groin, tinea pedis, onychomycosis and otitis externa. The examiner stated that the Veteran reported having had fungal infection of his feet and groin that had been ongoing since the 1940s. He had been treated with Gold dust powder used for otitis externa, and Hydrocortisone cream, 2.5 percent utilized for the Veteran’s tinea pedis. He used the medication less than six weeks over the past 12 months. Onychomycosis, tinea pedis, and fungal infection of the groin were noted to each be less than 5 percent of total body area. The conditions were said to cause discoloration and thickening of the toenails, flaking and skin on the feet, and flaking and redness in the groin. As noted above, in this case the predominant disability should be rated akin to eczema under Diagnostic Code 7806. After review of the record the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s combination of groin and foot tinea does not more nearly approximate 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. The record does show, however, that the effective date of the award of a compensable rating should date from the Veteran’s claim for increase on October 5, 2012. In this regard, it is noted that, while the November 2012 VA examiner did not specifically find tinea of the groin area, the Veteran had, prior to April 2014, declined examination of that area. Therefore, resolving all reasonable doubt in his favor, the Board finds that the 10 percent rating for the Veteran’s tinea pedis and cruris as well as for onychomycosis should be effective from the date of the claim appealed by the Veteran, October 5, 2012. The Board further finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because, as noted in the VA examinations that have been described, the Veteran’s tinea and onychomycosis do not more nearly approximate (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Nor has this been demonstrated on any examination or in the outpatient treatment records that have been reviewed. 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He does not assert, however, nor do the medical treatment records show, that his disability more nearly approximates the criteria in the next higher rating. The Board has also 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 of a rating in excess of 10 percent for fungal infection of the feet and groin, but the rating should be effective from the date of the Veteran’s claim for increase on October 5, 2012. To this extent, the appeal is allowed. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.