Citation Nr: 21011629 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-28 143A DATE: March 2, 2021 ORDER A rating in excess of 10 percent for tinea pedis is denied. REMANDED Service connection for residuals from a traumatic brain injury is remanded. Service connection for a chronic headache disorder is remanded. Service connection for disability of the right lower extremity, to include a right knee disability and radiculopathy, is remanded. A rating in excess of 10 percent for a lumbar spine disability is remanded. FINDING OF FACT During the appeal period, the Veteran’s tinea pedis has manifested in involvement of less than 20 percent of the entire body and exposed area; treatment for the tinea pedis does not consist of systemic therapy. CONCLUSION OF LAW The criteria for entitlement to an evaluation higher than 10 percent for service-connected tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2006 to November 2006. He also served in the U.S. Navy Reserves from November 1987 to April 2008 and had several periods of active duty for training (ACDUTRA) including from June 6, 1988 to June 19, 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The case was remanded in August 2017. In a July 2019 decision, the Board denied entitlement to service connection for traumatic brain injury, a chronic headache disorder, and right lower extremity radiculopathy, to include numbness and pain, and increased ratings for a lumbar spine disability and tinea pedis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and in August 2020 the parties agreed to a Joint Motion for Remand (JMR) that vacated and remanded the Board’s decision. The Court of Appeals for Veterans Claims (CAVC) granted the joint motion in an August 2020 Order. Increased Rating – Tinea Pedis The Veteran seeks entitlement to a disability rating in excess of 10 percent for his service-connected tinea pedis. The Veteran’s tinea pedis is rated by analogy under Diagnostic Code 7806 for eczema since tine pedis not specifically listed in the rating schedule 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, under Diagnostic Code 7806 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. 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, Diagnostic Code 7806. For claims filed prior to August 13, 2018, 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 10 percent rating is assigned for 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 30 percent rating is assigned 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. 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, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Veteran was provided with a VA examination in February 2010. The examiner noted that the Veteran’s service-connected tinea pedis was treated with ketoconazole as needed for greater than six weeks. The examiner noted that the medication was topical and that it was neither a corticosteroid or an immunosuppressive. He also used triamcinolone as needed for a period greater than six weeks in the prior 12 weeks. The examiner noted that this medication was a topical corticosteroid. The Veteran was provided with another examination in September 2010. The examiner noted that the Veteran’s service-connected skin disability affected no areas of the head, face, neck or hands and less than 5 percent of the total body area affected. The examiner noted that on his feet he had small patches of white scale on the soles near the lateral side and very slight small scaling between the toes. The examiner noted that the Veteran’s service-connected tinea pedis was treated with ketoconazole as needed for greater than six weeks. The examiner noted that the medication was topical and that it was neither a corticosteroid or an immunosuppressive. The Veteran was provided with a VA examination in November 2017. The examiner noted that the Veteran’s service-connected skin disorder had not been treated with oral or topical medications over the prior 12 months. His skin disability affected less than five percent of his total body and exposed areas. The record of evidence does not reflect that the Veteran was prescribed ketoconazole and triamcinolone or any other medication to treat his service-connected skin disability on an ongoing basis. The examination findings and treatment records do not provide a basis for a higher rating under rating criteria in effect at any time throughout the appeals period. The evidence reflects that the Veteran’s service-connected skin disability affects no exposed skin and less than 5 percent of his total body area. This would not warrant a rating in excess of 10 percent under the criteria in effect prior to or as of the change in regulations on August 13, 2018. The Veteran’s tinea pedis does not more nearly approximate a skin disorder involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that the Board must make a factual determination regarding whether a topical treatment for a skin disorder constitutes systemic therapy. The evidence of record does not support a finding that the Veteran’s topical treatment for tinea pedis affected his entire body. The treatment area was limited to the portion of his skin affected by his service-connected disability, which involved his feet and less than five percent of his entire body. The Board finds that this isolated use of topical corticosteroid cream to one or two parts of the body does not rise to the level of systemic therapy as it does not impact the entire body or a majority of the skin. In this case, the Board finds that the Veteran’s topical treatment for his service-connected tinea pedis did not constitute systemic therapy under the criteria in effect prior to August 13, 2018. As of August 13, 2018, the regulations indicate that topical corticosteroids are not systemic therapy required for the higher rating. As the Veteran applied topical cream to the feet to treat symptoms, the Board does not find that reaches the threshold of a systemic therapy for the period after August 13, 2018. Overall, no more than topical therapy has been required for tinea pedis during the appeal period. Overall, the VA treatment records and examination reports do not contain findings that would warrant an evaluation higher than 10 percent under Diagnostic Code 7806, which is the most appropriate diagnostic code to rate the disability. 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. See 38 C.F.R. § 4.118. REASONS FOR REMAND Service Connection – Residuals from a Traumatic Brain Injury In the July 2019 decision, the Board denied service connection for residuals of a TBI because it found that based on the evidence of record, to include an October 2016 VA TBI examination, he did not have a TBI diagnosis. However, the parties to the JMR agreed that the Board erred when it denied the Veteran’s TBI claim because it did not adequately address the Veteran’s reports of a loss of consciousness following his in-service head injury and his reported symptoms such as headaches, dizziness, and imbalance since the head injury. See February 2010 VA TBI examination, July 2009 VA treatment record. Further, at the October 2016 VA TBI examination, the Veteran again reported he had loss of consciousness and was dazed following his head injury, and that he has had headaches, as well as problems with balance and orientation since. In its July 2019 decision, the Board did not adequately address these statements, and instead relied on the October 2016 VA opinion that found that “TBI is not substantiated. Veteran bumped his head, unfortunately needing a couple of stitches. No documented in situ [sic] symptoms that are suspect for concussion/TBI, nor later.” As the above noted lay statements of loss of consciousness contradict the VA examiner’s rationale, the October 2016 opinion is inadequate. On remand, another opinion should be obtained, with a VA examination if necessary, to adequately address the Veteran’s statements regarding loss of consciousness and symptomatology since his in-service head injury. Service Connection – Chronic Headache Disorder The Board denied service connection for chronic headaches because it found that based on the evidence of record, to include the November 2017 VA examination, he did not have a diagnosis of chronic headaches. However, the parties agree that the Board erred when it denied the Veteran’s claim for service connection for chronic headaches claim based on no current diagnosis as it did not adequately address the February 2010 VA examination report that diagnosed the Veteran with a headache disorder. The February 2010 examiner noted that the Veteran’s headaches “most resembled tension headaches” and stated that the Veteran had tension headaches in the diagnosis section. The Board finds that the November 2017 VA examination is inadequate as the examiner did not address the evidence of record showing a diagnosis of tension headaches and ongoing reports of headaches in the record in determining that he did not have a current diagnosis of a headache disorder. As such, a new opinion is necessary with a VA examination if needed, to determine whether the Veteran has a current headache disorder related to service. Service connection – Right Lower Extremity to Include Radiculopathy and a Right Knee Disorder The Board denied service connection for right lower extremity radiculopathy because it found “that there was no evidence that the Veteran had any right lower extremity radiculopathy” based on the evidence of record, to include an April 2019 VA opinion. However, the parties agreed that the April 2019 VA medical opinion was inadequate, as it did not substantially comply with the Board’s August 2017 remand directives. In the August 2017 remand, the Board specifically noted that at the Veteran’s September 2010 VA spine exam, he reported numbness and parasthesias, and that private treatment records dated in March 2010 also reflected numbness in both lower extremities. The Board directed that a VA examiner “identify any current disability related to the Veteran’s...right lower extremity pain, and lower extremity numbness,” and that the examiner must specifically address the Veteran’s “current diagnoses regarding his...right lower extremity pain, and lower extremity numbness as discussed in detail in the body of the remand above” and provide a rationale for any opinion. However, the entirety of the April 2019 opinion was that a nerve conduction study in January 2018 showed left lower extremity radiculopathy, and that “[t]here is no evidence of any R lower extremity radiculopathy.” The examiner did not adequately address the evidence in the record showing numbness and pain in his right lower extremity. As such, on remand, a new VA opinion should be obtained that adequately complies with the August 2017 Board remand. The Court noted that the Veteran would additionally argue two points on remand. First, he would argue that VA must ensure that his outstanding VA treatment records are associated with his file, specifically to include records contained in the VistA imaging system. He noted that there appeared to be a January 25, 2018, EMG report that was scanned into the VistA imaging system that had not been associated with his file. See January 25, 2018, Neurology Consult. On remand, these records should be obtained and added to the claims file. Second, the Veteran would argue that his claim for entitlement to service connection for a disability of the right lower extremity should include his right knee, for which he has a diagnosis of a right knee disability in the record. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). He noted his July 2009 claim stated he was seeking compensation for “right leg pain” and that he was diagnosed with degenerative arthritis of his right knee at a November 2017 VA examination, but the Board characterized the issue on appeal as service connection for right lower extremity radiculopathy, to include numbness and pain. The Board has recharacterized the issue as noted on the first page of this decision to include a disability of the right knee and included a remand directive to obtain an opinion as to whether the Veteran’s current right knee degenerative arthritis is related to service. Increased Rating - Lumbar Spine Disability The Board denied a rating in excess of 10 percent for a lumbar spine disability based on the evidence of record, to include a November 2017 VA medical examination. However, the parties agree that the relied-upon November 2017 VA medical opinion is inadequate, as it did not substantially comply with the Board’s August 2017 remand directives. In the August 2017 remand, the Board stated that the VA examinations of the Veteran’s lumbar spine were inadequate because they did not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). It then ordered an examination to evaluate the current severity of his service-connected lumbar spine disability, stating that “[t]he examination must include testing of the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the spine,” and that “[t]o the extent possible, the examiner should attempt to estimate what the missing range of motion findings would have been upon prior examinations.” A VA examination was obtained in November 2017; however, the VA examiner did not attempt to estimate what the missing range of motion findings would have been during the February 2010 and September 2010 VA examinations, nor did he provide any reasons why these estimates could not be provided. Thus, as the November 2017 VA examination did not comply with the August 2017 remand directives, it is inadequate. On remand, another opinion as to the range of motion limitations on prior examination should be provided. The Veteran’s service-connected back disability is rated under Diagnostic Codes 5237-5243. 38 C.F.R. § 4.71a. It should be noted that although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, these Diagnostic Codes were not changed. The matters are REMANDED for the following action: 1. Obtain the January 25, 2018, Neurology Consult including the EMG report that was scanned into the VistA imaging system and associate the documents with the Veteran’s file. 2. Schedule the Veteran for a VA examination for his claimed TBI. The examiner must review the claims file. The examiner must opine as to whether the Veteran has current residuals/symptoms that are at least as likely as not related to a head injury in service. In so opining the examiner must address the Veteran’s statements that he suffered a head injury while working on a generator in Kuwait, that the hood fell from its locked position and hit him in the posterior aspect of his head, and that he lost consciousness for minutes and that he experienced intermittent headaches and dizziness since the initial injury (see February 2010 VA TBI examination), that he had a chronic gait imbalance since his head injury in Kuwait (see July 2009 VA treatment record), and that he had loss of consciousness and was dazed following his head injury, and that he has had headaches, as well as problems with balance and orientation since (see October 2016 VA TBI examination). Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Obtain an opinion, with a VA examination if necessary, for headaches. The examiner must review the claims file. The examiner must provide an opinion as to whether the Veteran has a current headache disorder that is at least as likely as not related to service. In so opining, the examiner must address the evidence in the record reflecting the February 2010 examiner’s opinion that the Veteran’s headaches “most resembled tension headaches” and that the Veteran reported intermittent dull frontal headaches occurring two to three times per month, lasting hours. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Obtain an opinion, with a VA examination if necessary as to the Veteran’s right knee degenerative arthritis. The examiner must review the claims file. Is it at least as likely as not that the right knee degenerative arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 5. Obtain an opinion with regard to the Veteran’s service-connected lumbar spine disability and claimed right lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. For the VA spine examinations of record in February 2010 and September 2010, the examiner is asked to estimate range of motion measurements in passive motion, weight bearing and non-weight bearing, and during flare-ups of the Veteran’s service-connected spine disability. With regard to flare-ups, if it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also provide an opinion as to whether the Veteran has neurological impairment/radiculopathy of the right lower extremity associated with his service-connected lumbar spine disability. In so opining, the examiner must address the Veteran’s reports of numbness, pain, and parasthesias (Continued on the next page)   (see September 2010 VA spine examination and March 2010 private medical records). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.