Citation Nr: 21024400 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-49 905A DATE: April 22, 2021 ORDER For the rating period on appeal, a 30 percent rating, but not higher, for the service-connected tinea corporis/cruris is granted. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, for the rating period on appeal, the diagnosed skin disabilities affected more than 20 but less than 40 percent of his total body area. 2. During the pendency of the appeal the Veteran did not meet the schedular criteria for a TDIU and a referral of TDIU for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. For the rating period on appeal, the criteria for a 30 percent rating, but not higher for the service-connected tinea corporis/cruris are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806 (2020). 2. The criteria for an award of a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to February 1972. Unfortunately, the Veteran died in December 2016. The appellant in this case is the Veteran’s surviving spouse, who has been properly substituted as the claimant and as such, she continues the Veteran’s pending claim on appeal to completion. See 38 C.F.R. § 3.1010(a). Procedural History In September 2015, VA received the Veteran’s claim for increased rating for tinea corporis/cruris. In a January 2016 rating decision, the RO denied the claim. In February 2016, the Veteran filed a claim for entitlement to a TDIU, and in a May 2016 rating decision, the RO denied claims for increased rating for tinea corporis/cruris and entitlement to a TDIU. In June 2016, the Veteran filed a timely notice of disagreement and a statement of the case was issued in July 2016. The Veteran did not timely perfect this appeal but in October 2016 submitted a new claim for increase along with a private disability benefits questionnaire that the RO construed as a substantive appeal, which was received within a year of the May 2016 rating decision. Although a proper substantive appeal was not received, the Board finds that under the facts of this case, it has jurisdiction to decide the claim on the merits. Specifically, the RO certified the claim to the Board and the appellant relied on the RO’s interpretation that the appeal was properly perfected. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (noting that the Board’s exercise of jurisdiction over a matter is derived from the notice of disagreement). Increased Rating for Tinea Corporis/Cruris The Veteran’s skin disorder is rated as 10 percent disabling pursuant to DC 7899-7806. Under DC 7806, as in effect prior to August 13, 2018, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating will be assigned where 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 are affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12- month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. As of August 13, 2018, DC 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where 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 less than 5 percent of exposed areas affected. A 10 percent rating is warranted where there is 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, photo-chemotherapy, 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 where there is 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 are 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. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “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.” With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016), the United States Court of Appeals for Veterans Claims (Court) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. However, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immuno-suppressive 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.” 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. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that 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. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the 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 Veteran’s claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. Additionally, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Analysis For the reasons expressed below, the Board finds that the criteria for a 30 percent rating is approximated. During a December 2015 compensation examination, the examiner rendered diagnoses of eczema, tinea cruris, psoriasis, intertrigo, tinea corporis, and tinea pedis. The Veteran reported that he had hypopigmented regions on the chest with superficial scaling, dry and scaling to the plantar aspects of the feet with maceration between his toes, shiny slightly erythematous skin on his abdominal folds, dry scaling skin on the thorax, and erythema with scaling on his ankles. None of the skin conditions caused scarring or disfigurement of the head, face, or neck. There was no benign or malignant skin neoplasms and no systemic manifestations due to any diagnosed skin disease. The Veteran was treated with antihistamines, to include Claritin 10mg and Hydroxyzine 25mg, daily. The eczema was constant/near constant and was also treated with topical corticosteroids, to include Triamcinolone ointment, Ketoconazole topical shampoo, and diaper rash cream. The examiner indicated that the Veteran had no treatment or procedures other than systemic or topical medications in the previous 12 months. The Veteran had no debilitating/non-debilitating episodes of in the previous 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On physical examination, the eczema covered 5 percent but less than 20 percent of total body area and less than 5 percent of exposed area. The psoriasis covered less than 5 percent of total and exposes areas. The tinea covered 5 percent but less than 20 percent of total body area and less than 5 percent of the exposed area. The intertrigo covered 5 percent but less than 20 percent of total body area and no exposed area. The overall total for all skin conditions diagnosed covered 5 percent but less than 20 percent of the total body and exposed areas. In March 2016, the Veteran underwent an additional compensation examination, at which time the examiner only diagnosed tinea corporis/cruris. The Veteran reported having rashes on his bilateral lateral chest, lower abdomen, groin/buttocks, and lateral feet/ankles. None of the scars caused disfigurement of the head, face, or neck. The examiner indicated that the Veteran had no treatment for the claimed condition. The diagnosed condition affected five percent but less than 20 percent of the total and exposed body areas. The examiner concluded that the Veteran’s skin condition did not cause any functional impairment and that the Veteran could perform both physical and sedentary employment. In June 2016 correspondence associated with his notice of disagreement, the Veteran indicated that VA determination that his skin condition only affected 10 percent of his body was incorrect. He went on to describe that at first the skin area that was impacted was three to four inches in diameter and now was more than 12 inches in diameter. In support of his claim, the Veteran submitted a private September 2016 disability benefits questionnaire, in which a private physician assistant confirmed diagnoses of tinea corporis/cruris and onychomycosis. The physician assistant noted that the Veteran had these problems since military service and was prescribed antifungals, to include Ketoconazole 400mg daily for four weeks as well as topical steroids. The symptoms sometimes slightly improved but quickly recurred. There were no benign or malignant skin neoplasms and no systemic manifestations. The treatment was by other oral medications, Ketoconazole for less than six weeks. The physician assistant added that the Veteran had debilitating episodes of frequent itching attributed to the fungal infections due to urticaria four or more times in the previous 12 months. The physician assistant checked both boxes of 5 percent but less than 20 percent and 20 percent to 40 percent of total body but failed to check any boxes for total exposed area affected. Lastly, the physician noted that the Veteran reported that due to persistent itching he had difficulty working and was unemployed. On review, the Board resolves all doubt in finding that a 30 percent disability rating is warranted for the entire rating period on appeal. Although the VA examination during the pendency of the appeal showed that the Veteran’s skin condition affected less than 20 percent of total body and exposed areas, the private DBQ noted that 20 percent but less than 40 percent of the total body/exposed areas was affected. In addition, the Veteran asserted that more areas than those identified by the VA examiner were affected. Given that a skin condition symptoms wax and wane, the Board finds the evidence at least in equipoise. A rating higher than 30 percent is not warranted there is no evidence suggesting that more than 40 percent of the entire body or more than 40 percent of the exposed areas were affected, or that constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, based on the Board’s decision herein, the Veteran is in receipt of a combined 30 percent rating. Accordingly, the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) are not met. In addition, the Board finds that referral for extraschedular consideration of a TDIU is not warranted. Specifically, a review of the record showed that the Veteran skin disorder does not preclude any gainful occupation based on the Veteran’s educational background and work history. The December 2015 examiner indicated that the skin condition impacted the Veteran’s ability to work and noted that he was able to perform ADLs with “above limitations;” however, no limitations were noted. In a February 2016 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated that his skin condition affected full-time employment since July 1, 2015. He indicated that he last worked as a truck driver in November 2008. He has high school education and training in welding, carpentry, and heavy equipment operation. The March 2016 examiner concluded that the Veteran was not functionally impaired as a result of his skin disorders. The examiner opined that the Veteran could perform both physical and sedentary employment. The September 2016 nurse practitioner noted the Veteran’s reports that due to persistent itching he had difficulty working and was unemployed. In June 2016 correspondence, the Veteran indicated that the itchiness and stress intensified to a point that he could no longer stay on the job. He added that he lost his job due to exposure to sunlight and sweating, which aggravated and exacerbated his skin problems. Specifically, the Court in Ray v. Wilkie, discussed whether a referral for extraschedular TDIU is warranted given the Veteran’s occupation. The Court defined the term “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, per his own assertions, the Veteran indicated that in addition to being a truck driver, he also had training in welding, carpentry, and heavy equipment operation. The Board finds that his complaints of not being able to work as a truck driver due to his skin condition because of sun exposure and itching is insufficient to establish that he was unable to perform any type of gainful occupation in another field that perhaps does not require working in the sun like carpentry, which he has the necessary educational background and training to perform. As noted above, the Board recognizes that the service-connected skin disability may cause some difficulties, but the evidence does not raise the issue of unemployability due to the service-connected disability. To the extent that his service-connected disability affects his employability, the schedular ratings assigned for his skin disorder compensate him for such impairment. Indeed, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155 (2012). Thus, referral for extraschedular consideration of a TDIU rating is not warranted. 38 C.F.R. § 4.16(b). As the Veteran does not meet the schedular requirements for a TDIU and referral is not appropriate in this case, entitlement to TDIU must be denied. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.