Citation Nr: 21010934 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-14 563A DATE: February 26, 2021 ORDER Entitlement to a compensable rating for dermatophytosis is denied. REMANDED Entitlement to increased ratings for bilateral hearing loss is remanded. FINDING OF FACT Throughout the appellate period, the Veteran’s dermatophytosis did not manifest as characteristic lesions involving more than 5 percent of the Veteran’s entire body affected, nor involving more than 5 percent of exposed areas affected, the use of 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. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for dermatophytosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.20, 4.27, 4.118, Diagnostic Code 7806 (2008, 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1963 to February 1967, and then again from May 1968 to April 1969. The Veteran’s service includes verified service within the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal of separate rating decisions issued May 13, 2013 and June 19, 2013—each by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. By way of background, the Veteran is appealing the propriety of initial ratings for dermatophytosis and bilateral hearing loss. The Veteran’s claims were before the Board on February 6, 2020; however, they were remanded so that evidence postdating the February 2014 Statement of the Case (SOC) could considered by the Agency of Original Jurisdiction (AOJ). See BVA Remand (Feb. 6, 2020). The Board concludes that the Veteran has been afforded substantial compliance with the remand directives as to the claim for dermatophytosis only. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequent to the Board remand, a staged increase to 20 percent for bilateral hearing loss only, from July 24, 2018 until prior to September 15, 2018, was awarded. See Rating Decision (Aug. 21, 2020). Aside from this staged increase, the Veteran’s bilateral hearing loss is otherwise rated as 10 percent disabling effective April 20, 2011 until July 24, 2018, and then effective September 15, 2018. Meanwhile, the Veteran’s service-connected dermatophytosis has been deemed noncompensable effective January 30, 2012. Because higher ratings are available throughout the appeal period and the Veteran is presumed to seek the maximum available benefits, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) in August 2020. The Board accordingly reasserts jurisdiction over the claims. For the reasons to follow, the Board denies the claim for a compensable rating for dermatophytosis; however, the Board remands the claim for increased ratings for bilateral hearing loss, because the Board concludes that it is precluded from issuing a final determination as to that claim. This matter is advanced on the Board’s docket on account of the Veteran’s age. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a compensable rating for dermatophytosis is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, if a claim is received within one year after separation from service, the effective date shall be “day following separation from active service.” 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date shall be date of receipt of claim or date entitlement arose, whichever is later. Id. 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. All benefit of the doubt will be resolved in the appellant’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible as his statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s service-connected dermatophytosis has been rated as noncompensable under Diagnostic Code 7806 since January 30, 2012. 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 AOJ 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. The Veteran has continuously prosecuted the instant claim for an increased initial rating. As a result, the Board shall consider both the old regulations (prior to the August 13, 2018 amendments) and new (as amended effective August 13, 2018) in rating the Veteran’s disorder; however, if the new regulations should prove to be more advantageous to the Veteran, then it cannot be effective prior to August 13, 2018. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than five percent of the entire body or less than five 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 five percent, but less than 20 percent, of the entire body, or; at least five 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. 38 C.F.R. § 4.118, Diagnostic Code 7806 (as effective from October 23, 2008 to August 13, 2018). 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 13, 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 Code 7806. 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: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or 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 six weeks over the past 12- month period. A 30 percent rating is assigned for at least one of the following: characteristic lesions involving more than 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 assigned for 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (as effective from August 13, 2018). The Court, in a July 2017 decision, held that topical use of corticosteroids constitutes systemic therapy under this diagnostic code. Johnson v. McDonald, 27 Vet. App. 497 (2016). The Federal Circuit, however, reversed the decision by the Court. Johnson v. Shulkin, 862 F.3d 1351 (2017). In reversing, the Federal Circuit agreed with the Secretary that the Court erred when it “read DC 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 went on to explain 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. The Veteran was initially examined for his dermatophytosis on May 17, 2013. See VA Exam ( May 17, 2013 ). The Veteran’s diagnosis of dermatophytosis was confirmed, and it was ascertained that the Veteran required only topical (albeit “constant or near-constant”) therapy—specifically, moisturizers for dry skin on his feet; meanwhile, the Veteran’s disorder was not found to affect more than 5 percent of his total body area, or any part of his total exposed body area. See id. at Questions 1, 3, and 5. There is no evidence of record that the Veteran’s dermatophytosis affected his body as a whole; instead, the Board concludes that his topical-only treatment affected only his feet. The Veteran’s next examination for his dermatophytosis was administered on July 24, 2018. See VA Exam ( July 24, 2018 ). Here, the examiner characterized the Veteran’s dermatophytosis as having been resolved as of two years prior, when he was treated with an oral anti-fungal medication. See id. at Question No. 2a. The Veteran now only uses a moisturizing cream on his feet in the winter. Id. He had not required treatment of any kind in the then-previous 12 months for any skin disorder, see id. at Question No. 3 et seq., and there is no percentage of his body (exposed or not) duly affected, see id. at Question No. 5. Subsequent to this examination, there is no evidence of any recurrence of the Veteran’s dermatophytosis, let alone evidence of compensable manifestations or evidence that an updated VA examination might otherwise be required. See generally, e.g.: Snuffer v. Gober, 10 Vet. App. 400, 403; Allday v. Brown, 7 Vet. App. 517 (1995). As such, the Board concludes that there is no competent or credible evidence of record to suggest entitlement to a compensable rating for dermatophytosis at any time during the appellate period. The Board has considered whether a rating for disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) is warranted, but finds that ratings under these Diagnostic Codes are not appropriate in this case. At no time during the period under review has the Veteran alleged, and the clinical evidence does not support, the presence of disfiguring scars of the head, face or neck, or scarring other than on the head, face or neck that is deep or cause limited motion related to his dermatophytosis. As such, the criteria outlined in Diagnostic Codes 7800 and 7801 are not applicable. Similarly, the evidence does not demonstrate superficial scarring due to dermatophytosis, or that the Veteran’s skin disability limits the functioning of any affected part of his body. Therefore, ratings under former Diagnostic Codes 7802-7805 are also not applicable. In assessing the severity of the dermatophytosis, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993. However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Veteran’s belief that he is entitled to a higher rating for his dermatophytosis is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. The Board notes that the Veteran’s dermatophytosis was stable throughout the period on appeal; therefore, a staged rating is not warranted. See Hart v. Mansfield, supra. Furthermore, the Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran's current employment situation is not clear as he reported that he had retired from the post office and then worked several other jobs in an August 2019 VA treatment note. Moreover, he has not asserted at any point in time that he is unable to secure and maintain employment due to his service-connected dermatophytosis. Therefore, entitlement to a TDIU has not been raised. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to increased ratings for bilateral hearing loss is remanded. Subsequent to the February 2020 Board remand, evidence of record now associated with the claims file indicates that the Veteran’s hearing was re-evaluated on September 18, 2019, so that his hearing aids could be appropriately fitted. See Audiology Clinic Note by K.M.G., Au.D. ( Sept. 18, 2019 ). The Federal Circuit has held that VA’s duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). To the extent that this audiogram exists, it is not available for Board review. The claim is accordingly remanded, so that the AOJ may associate this audiogram with the claims file. While the Board sincerely apologizes for the delay that may result in this remand, the Board concludes that without this evidence, the Board is precluded from issuing a final determination as to further entitlement to an increased rating for bilateral hearing loss. The matter is REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to identify any outstanding private or VA treatment records relevant to the bilateral hearing loss claim on appeal, including but not limited to any private treatment records from the Veteran’s ear nose and throat doctor, and all audiograms undergone during the appellate period, including but not limited to an audiogram dated September 18, 2019. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development, as well as any additionally indicated development (to include consideration of whether a new VA examination is warranted) has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.