Citation Nr: 21012823 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-39 302 DATE: March 5, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU), on a schedular basis, prior to September 10, 2012 is denied. An initial compensable rating for the service-connected right foot tinea pedis is denied. REMANDED Entitlement to a TDIU on an extraschedular basis prior to September 10, 2012 is remanded. FINDINGS OF FACT 1. Prior to September 10, 2012, the Veteran did not meet the schedular criteria for a TDIU because he did not have at least one service-connected disability rated at 40 percent or more and because the combined rating of his service-connected disabilities was less than 70 percent. 2. For the entire initial rating period, the Veteran’s service-connected right foot tinea pedis has affected less than 5 percent of total body area and less than 5 percent of the exposed area and has required no more than topical therapy. CONCLUSIONS OF LAW 1. The criteria for a TDIU on a schedular basis prior to September 10, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. 2. For the entire initial rating period, the criteria for a compensable rating for the service-connected right foot tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to December 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2012 rating decision which granted service connection for right foot tinea pedis at zero percent, effective March 2, 2011 and an October 2018 rating decision which granted a TDIU effective September 10, 2012. This matter was previously before the Board in September 2018 and July 2020, when the issues were remanded for further development. Schedular TDIU Prior to September 10, 2012 In an October 2018 rating decision, the RO granted a schedular TDIU with an effective date of September 10, 2012, the date on which the Veteran met the minimum schedular requirements for TDIU. He contends that he is entitled to an earlier effective date for the award of a TDIU. Entitlement to TDIU benefits requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a decision, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When the schedular rating is less than total, a total rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). Prior to September 10, 2012, service connection was effective for lumbar myofascial syndrome at 20 percent disabling, sciatic nerve radiculopathy of the left lower extremity at 10 percent disabling, femoral nerve radiculopathy of the left lower extremity at 10 percent disabling, and right foot tinea pedis at a noncompensably disabling level. As a matter of law, the Veteran did not meet the schedular criteria for a TDIU prior to September 10, 2012, and a schedular TDIU must be denied. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Notwithstanding this decision, the Board will address the issue of entitlement to an extraschedular TDIU in the Remand portion below. Increased Rating – Right Foot Tinea Pedis Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “stage” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s right foot tinea pedis is rated as noncompensable under DC 7813, for dermatophytosis. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new criteria apply to all applications for benefits received by VA or that are pending on or after August 13, 2018. Claims, such as the one in this case, which were pending prior to the effective date, will be considered under both the former and revised rating criteria, and those criteria that are more favorable to the veteran will be applied from the effective date of the new criteria. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (may not apply current regulation prior to effective date unless regulation explicitly provides otherwise). Prior to August 13, 2018, DC 7813 directed disabilities that did not involve scars or disfigurement of the head, face, or neck to be evaluated under DC 7806. Under DC 7806, a noncompensable rating was assignable when the skin disability involved less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and, during the past 12-month period, no more than topical therapy was required. A 10 percent rating was assignable when the skin disability involved 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, during the past 12-month period, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of less than six weeks. A 30 percent rating was assignable when the skin disability involved 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or, during the past 12-month period, systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly. A 60 percent rating was assignable when the skin disability involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or, during the past 12-month period, constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. For claims filed prior to August 13, 2018, caselaw indicates that systemic therapy is the type that affects the entire body in its treatment of the condition at issue, and, in determining whether a claimant is receiving such therapy, the Board must review (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). “Both elements must be present to justify a higher rating under DC 7806, but the order in which they are addressed is of no import.” Id. at 294. If the treatment is clearly systemic, only the second question need be addressed. Id. Effective August 31, 2018, systemic therapy is specifically in regulations as treatment that is administered through any route other than the skin. Topical therapy is defined as treatment administered through the skin. 38 C.F.R. § 4.118(a). Effective August 13, 2018, a new General Rating Formula for the Skin applies to DC’s 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assignable when the skin disability requires no more than topical therapy over the past 12-month period and can be identified by 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 assignable when the skin disability can be identified by 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, 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. A 30 percent rating is assignable when the skin disability can be identified by 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 assignable when the skin disability can be identified by 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. A skin disability may be rated based on disfigurement of the head, face, or neck (DC 7800) or scarring (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating Formula for the Skin for DC’s 7806, 7809, 7813-7816, 7820-7822, and 7824. At a December 2011 VA examination, the Veteran reported experiencing maceration of the skin between toes, cracking and bleeding of the skin between his toes and heels, and extreme itching between his toes. He stated that these problems worsen in the spring and summer but improve in the winter. The examiner confirmed the diagnosis of tinea pedis and noted that the Veteran has not been treated with any oral or topical medications in the prior 12 months. The examiner also noted that the Veteran had very mild tinea pedis between toes of both feet, but no erythema, excoriations, maceration, swelling, or discharge was present. The examiner reported that the total surface area affected was less than 1 percent, while the total exposed area was 0 percent. The Veteran’s heels were very dry, with flaking and cracking skin, but no bleeding or open wounds were present. There were no signs of infection or tenderness to either foot and no evidence of dermatitis, eczema, bullous disorder, psoriasis, cutaneous manifestations of collagen-vascular disease, papulosquamous disorder, acne or chloracne, vitiligo, scarring alopecia, alopecia areata, hyperhidrosis, or tumors or neoplasms. The examiner opined that the Veteran’s right foot condition was at least as likely as not related to his military service. Outpatient treatment records reveal that the Veteran has been prescribed naftifine and ketoconazole and antifungal creams to be applied to the affected skin, at various times throughout the appeal period. However, there are no medical treatment records associated with the claims file that indicate that the Veteran’s right foot tinea pedis symptoms are more severe than those exhibited on VA examination during the appeal period. As an initial matter, the Board observes that naftifine and ketoconazole are antifungal medications. As such, neither is a corticosteroid that could have been considered systemic therapy under the former regulations. In this case, the Veteran’s tinea pedis does not meet the criteria for a 10 percent rating under either the former or revised rating criteria. Throughout the appeal period, he has only used topical antifungal creams to treat his right foot disability. Further, the December 2011 VA examination revealed that less than 5 percent of total body area was affected, with no exposed area affected. No evidence has been found that suggests the Veteran’s right foot disability has affected at least 5 percent of his total body area or exposed area at any time during the appeal period. Given the above, the Board finds that the Veteran’s service-connected right foot tinea pedis has not been found to affect 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 required intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period. Thus, a compensable rating for the service-connected right foot tinea pedis is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU On An Extraschedular Basis Prior To September 10, 2012 When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the schedular requirements for TDIU set forth in 38 C.F.R. § 4.16 (a), the case may be referred to VA’s Director of Compensation Service for consideration of TDIU on an extraschedular basis. Here, evidence suggests that the Veteran may have been unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities prior to September 10, 2012, the date on which his service-connected disabilities met the schedular criteria for a TDIU. He has continuously asserted that his service-connected lower back disability, and secondary radiculopathy disabilities, prevented him from working since 2010. Although he was service connected for these disabilities prior to September 10, 2012, the AOJ has not considered assigning a TDIU on an extraschedular basis during this time period. As such, entitlement to a TDIU on an extraschedular basis prior to September 10, 2012 was not appropriately adjudicated by the RO in the first instance. However, because referral to VA’s Director of Compensation Service is appropriate here, any duty to assist violation resulting from the issue not having previously been adjudicated before being certified to the Board will be resolved by the adjudication of the issue by VA’s Director of Compensation Service. For the reasons discussed above, referral of the issue of entitlement to an extraschedular TDIU prior to September 10, 2012 is warranted. Accordingly, this matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis prior to September 10, 2012 to VA’s Director of Compensation Service for consideration in accordance with 38 C.F.R. § 4.16(b) as to whether the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities prior to September 10, 2012. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination, if requested, may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.