Citation Nr: 21015488 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-02 426 DATE: March 17, 2021 ORDER Entitlement to an initial compensable rating for tinea pedis is denied. FINDING OF FACT The Veteran’s tinea pedis has not been treated by topical or oral medication within the past 12 months; and encompassed none of the exposed area and less than five percent of total body area. CONCLUSION OF LAW The criteria for a compensable rating for service-connected tinea pedis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7806-7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy during the Gulf War Era, from April 1994 to April 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Rating Decision by the Department of Veterans Affairs (RO) Regional Office (RO). In September 2018 and July 2020, this matter was previously before the Board and was remanded for additional development. The Board acknowledges that the scheduled examination was cancelled at the Veteran's own request, indicating that she received actual notice of the examination. The Board therefore finds that as the record indicates that the Veteran received notice of the examination and cancelled it on her own initiative. The purpose of the documentation of the notification of the examination was to ensure the Veteran received proper notice. As the record shows that the Veteran had actual knowledge of the date and time of the examination, the purpose of the remand has been fulfilled and the Board finds that there has been substantial compliance with the July 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board determines that the appeal may be decided without prejudice to the Veteran. See D'Aries v Peake, 22 Vet. App. 97, 104 (2008). As noted above, the Veteran was scheduled to undergo a VA skin disease examination for tinea pedis, which she cancelled. The Board's review indicates that the record does not contain any communication regarding good cause for the cancellation or requesting that the examiner be rescheduled. The issue on appeal will therefore be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(b). Initial Rating Disability evaluations are determined by the application of VA's 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 or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings, and as explained in more detail below are not warranted herein. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Tinea pedis The Veteran contends generally that she should be entitled to a compensable disability evaluation for her service-connected tinea pedis. The Veteran submitted her current claim for a compensable rating for her service-connected tinea pedis in June 2014. See June 2014 notice of disagreement (NOD). The Veteran is currently rated as non-compensable pursuant to Diagnostic Code 7813. The Board notes that during the pendency of the appeal, effective August 13, 2018, the rating criteria for skin disabilities were revised. 83 Fed. Reg. 32592 (July 13, 2018). The Board will consider the Veteran's claim for a compensable disability rating for tinea pedis under the criteria in effect before and after the August 13, 2018 revisions, and apply the criteria that is more favorable to the Veteran. Diagnostic Code (DC) 7813 is for dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris). The use of the hyphenated code in this case signals that the rating has been assigned determined on the basis of residual conditions under DC 7813 under the general condition of dermatitis listed in DC 7806. See 38 C.F.R. § 4.27. VA amended the criteria for rating skin disabilities effective 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 7806 provided for a noncompensable disability rating when dermatitis or eczema involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy has been required during the past 12-month period. A 10 percent rating is warranted when affecting at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, 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. Id. at 1355. The Federal Circuit acknowledged that 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "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, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. Under this formula, a maximum 60 percent rating requires 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. Id. A 30 percent rating requires 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 such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id. A 10 percent rating requires 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 such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. Id. A noncompensable (0 percent) rating is assigned where there is 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. Id. In March 2014, the Veteran was afforded a VA skin diseases examination related to tinea pedis. The examiner noted that the Veteran had a diagnosis of tinea pedis. The Veteran did not have a skin condition that caused scarring or disfigurement of the head, face or neck or benign or malignant skin neoplasms. The Veteran did not have any manifestations due to any skin diseases but was treated with oral or topical medications in those past 12 months for her skin condition. The total duration of medication use in those past 12 months was less than 6 weeks. The Veteran had not had any debilitating or non-debilitating episodes within those past 12 months. On examination, the examiner found that the approximate total body area and approximate total exposed body area of infections of the skin and exposed area are none. No area was affected. The Veteran’s skin condition did not impact her ability to work. In June 2014, the Veteran submitted a timely NOD. The Veteran indicated that she received a zero percent rating for tinea pedis, which was 5 percent or greater on both of her feet due to wearing combat boots. The Veteran stated that she felt her condition warranted a higher rating, because the condition had required her to have treatment. She stated that she had to wear certain supports for comfort and had to alter her life to accommodate her conditions. See June 2014 NOD, p.2-3. In June 2015, the Veteran was afforded another skin diseases examination related to tinea pedis. The examiner noted that the Veteran had a diagnosis of tinea pedis. The Veteran reported recurrent flaky irritating skin in her toes and feet; which required oral and topical antifungal treatment while she was in-service. The Veteran stated the tinea pedis condition had not been bad and had not required treatment within that past year. The Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms and she did not have any systemic manifestations due to any skin diseases. The Veteran had not been treated with oral or topical medications with in those past 12 months. The Veteran did not have treatments or procedures with in those past 12 months and no debilitating or non-debilitating. The approximate total body area and approximate total exposed body area was less than 5 percent for the infections of the skin (total body area) and none for exposed area. In a January 2019 VA treatment note, the Veteran was given a screening and reported no persistent skin rash. See May 2020 Capri, p.46. In a February 2020 VA treatment record, a clinician did a review of systems and the Veteran denied changing lesions. In addition, the clinician noted that there were no suspicious lesions on any exposed surface of the skin. See May 2020 Capri, p.3;6. In October 2020, the Veteran voluntarily cancelled her examination for tinea pedis, because the examination was completed at the beginning of the year. See October 2020 Exam Request, p.1. However, there was no skin examination for the feet that is of record, instead the Veteran was afforded a skin examination for acne in November 2019 and an examination for pes planus in August 2019. Considering the medical evidence discussed above, the Board finds that at no point during the appellate period has the Veteran's tinea pedis warranted a compensable disability rating. The VA examination reports did not show that at least 5 percent of the body was affected by her service-connected tinea pedis. Additionally, the evidence of record does not show that the Veteran was provided with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. At worst, the June 2015 VA examination report showed that the Veteran was not treated with topical oral medication within the past 12 months. There was no indication of topical or oral medication use in other medical records or at least 5 percent or more of her body being affected. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Thus, the topical medication does not constitute systemic therapy under the criteria prior to August 13, 2018. Additionally, under the rating criteria effective August 31, 2018, the Veteran is not warranted a compensable rating because at worst, less than 5 percent of total body surface area was affected and there is no evidence of intermittent systemic therapy. 38 C.F.R. § 4.118(a). Therefore, this treatment only supports a noncompensable disability rating under the General Rating Formula for DC 7806. See 38 C.F.R. § 4.118, General Rating Formula for the Skin. As the VA examiners noted that there was no disfigurement of the head, face or neck, a rating under Diagnostic Code 7800 does not apply here. Additionally, there is nothing in the medical record to suggest that the Veteran has suffered from scarring resulting from her tinea pedis in order to rate her under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805. Accordingly, the Board finds that the Veteran is not entitled to a compensable initial rating for her service-connected tinea pedis. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.