Citation Nr: 21022076 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-62 583 DATE: April 14, 2021 ORDER Entitlement to a compensable disability rating for service-connected intertrigo dermatitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s intertrigo dermatitis affects less than five percent of his total body area and his exposed areas; and the preponderance of the evidence is against a finding that it has been treated with systemic therapy. 2. The probative evidence of record does not show the Veteran was unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for service-connected intertrigo dermatitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7899-7806. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from October 1962 to January 1983. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing has been included with the record. In November 2019, the Board remanded the Veteran’s claim for an increased rating for intertrigo dermatitis to obtain relevant private treatment records. The above issues were previously before the Board in October 2020. The Board remanded to provide further development. Increased Ratings VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The Board determines the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 1. Entitlement to a compensable disability rating for service-connected intertrigo dermatitis The Veteran contends he suffers from symptoms of his intertrigo dermatitis warranting a compensable disability rating. The Veteran contends that his skin condition has worsened and that he continuously treats his condition with corticosteroids. The Veteran’s intertrigo dermatitis is rated under DC 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis of an evaluation. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built up” with the first two digits being selected from that section of the schedule most closely identifying the part, and the last two digits being “99” for an unlisted condition. Id. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. The VA rating criteria pertaining to skin disabilities were revised, effective August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. Under the rating criteria for DC 7806 in effect prior to August 13, 2018, a 10 percent rating was 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 was 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 was 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. With regard to the meaning of “systemic therapy” prior to the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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.” Id. at 1355. Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Burton v. Wilkie, 30 Vet. App. 286, 289-93 (2018). Additionally, there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Id. at 289-93. Under the new criteria, for rating purposes, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” 38 C.F.R. § 4.118(a). Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following is present: 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 at least one of the following is present: 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 for 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. Turning to the evidence of record, the Veteran’s May 2013 VA treatment record noted the Veteran’s VA dermatologist diagnosed intertrigo. The VA dermatologist treated the Veteran’s skin condition with zinc oxide paste, ketoconazole cream, and hydrocortisone cream. The Veteran returned for a follow up appointment in October 2013. The VA dermatologist noted the Veteran’s condition had improved symptomatically, but the Veteran was concerned about the change in skin color around the affected areas. The Veteran’s October 2019 VA medical records demonstrated the Veteran continued treatment with the prescribed nightly application of small amounts of corticosteroid creams throughout the period on appeal. The Veteran underwent a VA skin condition examination in June 2014. The VA examiner confirmed the Veteran’s diagnosis of intertrigo. The Veteran noted that his skin condition had worsened at the time of the examination. He reported that he constantly used ketoconazole and zinc oxide paste in the groin area to prevent flare-ups. The Veteran described the symptoms of a flare-up as an increased itching. The Veteran noted he tried to stop using the medication when the rash cleared but the rash always came back. The VA examiner noted the Veteran’s skin condition affected less than 5 percent of the total body area and none of the Veteran’s exposed skin. The VA examiner described the condition as a mild inflammation of the left groin area with flaky skin with a 4 to 5-centimeter diameter. The examiner noted pigment changes in the right groin area with no inflammation. The VA examiner noted the Veteran displayed cutaneous manifestations of collagen-vascular disease. The VA examiner noted the Veteran treated his skin condition of the groin areas with ketoconazole and zinc at a constant, or near constant rate, for the past 12 months. The VA examiner noted the Veteran’s skin condition did not impact his ability to work. The RO provided a skin disease VA examination in November 2020. The examination noted the Veteran had redness, skin pigment loss, skin sloughing, and itching in the intertrigo spaces of the bilateral groin and buttock. The VA examiner noted the Veteran’s skin condition affected less than 5 percent of the total body area and none of the Veteran’s exposed skin. The VA examiner remarked that the skin condition of the right groin was red with skin peeling in an area 7 centimeters by one centimeter and 3 centimeters by one centimeter of the left groin. The skin condition of the intertrigo buttock area was red with peeling skin in an area of 6 centimeters by one centimeter. The VA examiner reported the Veteran treated his skin condition with corticosteroids, to include triamcinolone and hydrocortisone. The examination noted the Veteran also used an anti-fungal topical medication. The examiner noted these treatments as topical and were applied 6 weeks or more in the past 12 months, but not constant. The Veteran reported that, although he used these medications frequently, the medication was not eliminating the problem and his skin condition was worsening. The VA examiner provided a clarifying medical opinion regarding the Veteran’s medication history. The VA examiner noted the Veteran was prescribed ketoconazole, triamcinolone, and hydrocortisone for the dermatitis since 2010. The VA clinician stated that the medication was not systemic. The VA examiner noted the triamcinolone, and hydrocortisone is a steroid and can suppress the immune system in the area of application. The Veteran’s use of corticosteroid creams is consistent with topical, rather than systemic therapy. The evidence indicates that the Veteran has not used oral medications at any time during the appeal period. Although the Veteran does use a topical corticosteroid, on a constant or near-constant basis, to treat his intertrigo dermatitis, the evidence of record demonstrates that the Veteran was prescribed small amounts of the topical treatment, for particular surface areas of the affected skin, rather than for his entire body. The Board finds that the Veteran’s use of a topical corticosteroid does not meet the definition of systemic therapy, as the treatment is localized to the areas affected with the skin condition. Additionally, there have been no reported side-effects of administering the medication and does not pertain to the body as a whole. See Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). Although the Board is sympathetic that the evidence of record shows an increased area affected, the evidence of record shows the Veteran’s skin condition affects less than 5 percent of his body and does not affect exposed portions of skin. Accordingly, the Veteran’s skin intertrigo dermatitis does not warrant a compensable VA disability rating under DC 7899-7806. 38 C.F.R. § 4.118. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to TDIU The issue of entitlement to TDIU was reasonably raised by the record in the August 2015 Notice of Disagreement. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran stated that he was unable to work due to his service-connected anxiety condition. Pursuant to the October 2020 Board remand, the RO supplied the Veteran with VA Form 21-8940, with instructions on filing for TDIU. Moreover, the Board remanded to determine whether the Veteran’s previous work experience constituted substantially gainful employment as defined under 38 C.F.R. § 4.16. The Board notes that the Veteran did not return VA Form 21-8940 to provide additional information regarding his education and work history. While the Board has a duty to develop the Veteran’s claim of entitlement to a TDIU reasonably raised by the record, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, information regarding the Veteran's dates of employment and any other information regarding the Veteran’s occupational experience is not available. The Board must come to a decision based on the available evidence of record. The record demonstrates that the Veteran has been continuously employed since 2013. The Veteran reported during his January 2020 VA psychiatric examination that he works with the local sheriff department as a school crossing guard. The Veteran reported that he enjoyed his work and denied experiencing any performance issues. The Veteran’s April 2017 VA primary care provider noted the Veteran’s overall good health for driving and school crossing work. Additionally, the evidence of record is absent of claims that the Veteran’s service-connected disabilities have hindered his ability to work as a crossing guard. As the evidence of record demonstrates that the Veteran has maintained employment since 2013, the Board must determine whether the Veteran had marginal employment due to his service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of TDIU, marginal employment is generally deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Here, the record does not contain evidence showing that the Veteran’s actual employment was “marginal” in nature. There is no evidence showing the Veteran’s earned income is below the established poverty threshold. Additionally, the Veteran was not employed in a protected environment, such as a family business or sheltered workshop, so as to support a determination of marginal employment on a facts-found basis. Thus, based on the evidence of record available, the Board concludes that the Veteran has not been rendered unemployable due to his service-connected disabilities for the period on appeal. The benefit of the doubt rule does not apply and the claim for TDIU is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.