Citation Nr: 21013846 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-26 379 DATE: March 10, 2021 REMANDED Entitlement to a compensable rating prior to March 11, 2013 and in excess of 30 percent thereafter for tinea pedis, tinea cruris, tinea corporis, and onychomycosis (hereinafter skin disorder) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Coast Guard from June 1958 to June 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his skin disorder from noncompensable to 30 percent effective March 11, 2013. The Veteran testified before the Board at a hearing held by the undersigned in January 2019. A transcript of the hearing is of record. Thereafter, the Board remanded the appeal in April 2019 for further development.   Entitlement to a compensable rating prior to March 11, 2013 and in excess of 30 percent thereafter for skin disorder is remanded. The AOJ has assigned the Veteran’s skin disorder a noncompensable rating prior to March 11, 2013 and a 30 percent rating thereafter under hyphenated Diagnostic Code 7813-7806. Diagnostic Code 7813 provides for evaluating the dermatophytosis disability by analogy to disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805) or dermatitis (Diagnostic Code 7806), depending on the predominant disability. A review of the record illustrates the Veteran’s skin disorder is most appropriately rated under the criteria pertaining to dermatitis as there is no evidence of scars. Therefore, the Board must determine whether a compensable rating is warranted under Diagnostic Code 7806 for rating dermatitis or eczema. Under Diagnostic Code 7806, a noncompensable evaluation contemplates 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-month period. A rating of 10 percent is assigned with 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 the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A rating of 30 percent is assigned with 20 to 40 percent of the entire body or exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. A rating of 60 percent is assigned with more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. During the pendency of the instant appeal, effective August 13, 2018, VA revised the criteria for rating skin disabilities, which are applicable to the Veteran’s claim from the effective date of the rulemaking, if more favorable to the Veteran. See 83 Fed. Reg. 32,593 (July 13, 2018). Under the amended rating criteria, dermatophytosis under Diagnostic Code 7813 is to be rated under the General Rating Formula for the Skin, which provides that a noncompensable rating is warranted where there is 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 warranted where there is 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 warranted where there is at least one of the following: characteristic lesions involving 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 warranted where there is 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. The General Rating Formula further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805). In Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that Diagnostic Code 7806’s use of “systemic therapy such as corticosteroids” generally does not include application of topical corticosteroids which affect only the area to which it is applied. 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit defined systemic therapy as treatment pertaining to or affecting the body as a whole, while topical therapy was defined as treatment pertaining to a particular surface area and affecting only the area to which it is applied. Id. at 1355. Thus, according to the Federal Circuit, the application of a topical corticosteroid does not automatically mean systemic therapy was used. Id. Rather, a determination as to whether use of a topical corticosteroid is considered systemic therapy or topical therapy will be based on the factual circumstances of each case. Id. at 1356. The Federal Circuit then opined that one of the factual circumstances for consideration is whether the topical corticosteroid was administered on a large enough scale to affect the body as a whole. Id. at 1355. In Burton v. Wilkie, the Court of Appeals for Veterans Claims (the Court) again addressed “systemic therapy” in the context of topical treatment. The Court held that the method by which the treatment works is another factual circumstance for consideration when determining whether a topical treatment can be deemed systemic therapy. Burton v. Wilkie, 30 Vet. App. 286, 291 (2018). Additionally, the Court held that a finding of systemic therapy is not limited to the use of corticosteroids or immunosuppressive drugs. Rather, VA must determine whether any given treatment is “like” a corticosteroid or other immunosuppressive drug in that it affects the body as a whole. Id. at 295. The Court added that determining whether a treatment is systemic therapy is a factual determination that will likely require a medical opinion for resolution. Id. In this case, a January 2020 VA examination report reflects that the Veteran had not been treated with medication for any skin condition in the 12 months preceding the examination. A January 2021 VA examination report reflects that the Veteran had used corticosteroids or other immunosuppressive medications in the 12 months preceding the examination. In particular, the examination report reflects that the Veteran uses hydrocortisone (1%) cream on a constant/near-constant basis for his tinea pedis, tinea corporis, and tinea cruris. In addition, the examination report reflects that the Veteran uses miconazole nitrate (2%) every day for his tinea pedis, tinea corporis, and tinea cruris, and terbinafine (1%) cream for his tinea cruris. However, even though the January 2021 VA examiner checked the box on the examination report that the Veteran uses corticosteroids or other immunosuppressive medications, the examiner did not discuss whether the use of a topical corticosteroid (hydrocortisone (1%) cream) constitutes systemic therapy. Furthermore, there is no discussion of whether the Veteran’s use of miconazole nitrate and terbinafine are “like” a corticosteroid or other immunosuppressive drugs in that they affect the body as a whole. As these are medical questions outside of the Board’s fact-finding proficiency, the Board finds remand for a VA addendum medical opinion must be obtained to resolve these issues. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file updated VA treatment records from January 2021 to the present. 2. Obtain an addendum opinion from the January 2021 VA examiner, if available, or another appropriate medical professional if the January 2021 VA examiner is not available, for the Veteran’s skin disorder claim. If the examiner determines that an in-person examination is needed in order to answer the questions posed, then such should be scheduled and efforts should be made to schedule the exam at a time when the skin condition is active, unless there is sufficient information (e.g., from treatment records) to determine that this is not required. Following a complete review of the electronic claims file, including this remand, the examiner must address the following inquiries: (a.) Whether the Veteran’s use of hydrocortisone (1%) cream to treat his tinea pedis, tinea corporis, and tinea cruris constitutes systemic therapy. In answering this question, the VA examiner must discuss the method by which the cream works and whether the cream is administered on a large enough scale to affect the body as a whole. (b.) Whether the Veteran’s other topical medications, including miconazole nitrate (2%), to treat his service-connected tinea pedis, tinea corporis, and tinea cruris is “like” a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. (c.) Whether the Veteran’s other topical medications, including terbinafine (1%) cream, to treat his service-connected tinea cruris is “like” a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered   due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.