Citation Nr: 21024899 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-20 147 DATE: April 26, 2021 ORDER Entitlement to a compensable rating for fungal rash is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s fungal rash is manifested by characteristic lesions over less than five percent of the entire body and treated with no more than topical therapy. CONCLUSION OF LAW The criteria for a compensable disability rating for fungal rash have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 until August 1985, from September 1990 until June 1991, and from January 2004 until February 2005. The Veteran has additional service as a member of the Army Reserve. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2019, the Board remanded the claim for further development to include an examination to evaluate the current severity of the Veteran’s fungal skin disability. The Board finds there has been substantial compliance with its prior remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable rating for fungal rash The Veteran asserts that his fungal rash disability has worsened such that a compensable evaluation is now warranted. The Veteran’s fungal rash has been evaluated under the General Rating Formula for Skin Disorders. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating is warranted where at least five percent, but less than twenty percent, of the entire body affected; or at least five percent, but less than twenty 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 disability rating is warranted where 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 is warranted where 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. 38 C.F.R. § 4.118. After careful and sympathetic review of the evidence of record, to include the Veteran’s VA treatment records, VA examination reports, and the competent and credible lay statements, the Board finds that throughout the appeal period the Veteran’s service-connected skin disability did not affect at least 5 percent, but less than 20 percent, or the entire body or of the exposed areas or require intermittent systemic therapy. The Veteran’s skin condition has required only topical therapy as contemplated by VA regulations. A Skin Diseases Disability Benefits Questionnaire (DBQ) was completed by a VA nurse practitioner in February 2016. That examiner diagnosed with fungal rash and noted that no rash was present upon examination but indicated that, when the rash is present, it covers less than 5 percent of the Veteran’s total body and none of his exposed body. The examiner further noted that the Veteran’s condition was treated with topical medications for more than six weeks in the past 12 months but that the treatment was not constant. On an August 2016 Statement in Support of Claim, the Veteran stated that his fungal rash continues to occur “all over the body with little relief from cream.” In October 2016, a VA physician completed another Skin Diseases DBQ. That examiner diagnosed unspecified fungal rash and noted that no fungal rash was present on examination. The physician stated that the fungal rash covered none of the Veteran’s body and none of the exposed body. It was also noted that the Veteran had treated the condition with topical medications for more than six weeks in the past 12 months but that treatment was not constant. In April 2017, the Veteran stated on a VA Form 9 that he has been using “proctor foam” since diagnosis and that he also takes an antibiotic to kill any parasites. At his hearing, the Veteran testified that he had experienced a worsening of his condition to include abdominal pain, rectal itching, and bleeding in the intestinal area. Pursuant to the Board remand, the Veteran underwent a VA examination in January 2020. The examiner diagnosed fungal rash that covers 3-4 percent of the Veteran’s total body surface area when it flares and that the Veteran has treated the condition with topical medication only for less than 6 weeks in the previous 12 months. Additionally, the examiner explained that the other issues noted by the Veteran during the Board hearing are independent and distinct medical conditions. The Board finds that during the entire appeal period, the Veteran’s fungal rash disability has manifested as covering less than 5 percent of his total body surface area and required treatment by topical medications only. Therefore, the assignment of a noncompensable rating for the appeal period is appropriate. A compensable rating requires at least five percent, but less than twenty percent of the entire body affected, or at least five percent, but less than twenty percent of exposed areas affected. See Diagnostic Code 7806. In this case, the Veteran’s affected areas did not meet the five percent threshold necessary for a compensable disability rating. A compensable rating also requires intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. Id. On August 13, 2018, the VA adopted new regulations for skin disorders. Under the new regulations 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. 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The new regulations create a bright-line definition of topical and systemic treatment therapies. Prior to this change, the regulations did not define topical or systemic treatment and the determination of whether a Veteran received topical or systemic treatment was based on the factual circumstances of each case. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). As the Veteran filed a claim for service connection prior to August 13, 2018 and his appeal for an increased rating was pending on August 13, 2018, the Board will consider both the new and old regulations and apply the most favorable. 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, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects “only the area to which it is applied” to count as a systemic therapy under the Code. However, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case and does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Id. 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. Burton v. Wilkie, 30 Vet. App. 286 (2018). The Board will consider whether topical treatment for a skin disorder constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs” under the pre-August 13, 2018 version of DC 7806; whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition; and whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. The Board finds the Veteran’s medications regimen consistent with topical, rather than systemic therapy. The record shows that the Veteran did not use oral medications at any time during the appeal period to treat his fungal rash. The January 2020 examiner concluded that the Veteran’s service-connected fungal rash and complications from ingesting parasites while in Iraq are independent and separate. The service-connected fungal rash has been treated with anti-fungal cream, powder, and foam. There is no evidence that such topical treatments were applied to the body as a whole or anywhere on the body other than the affected areas. There is also no suggestion that the Veteran’s medication is like a corticosteroid or immunosuppressive drug. Accordingly, a compensable disability rating under Diagnostic Code 7806 based upon treatment of the Veteran’s skin condition is not warranted at any time during the appeal period. 38 C.F.R. § 4.118 The Board has considered all potentially applicable provisions of 38 C.F.R. § 4.118 for skin disorder. In this case, the Board finds no provision upon which to assign the Veteran a compensable disability rating for fungal rash. A compensable rating is not warranted. Therefore, the Veteran’s claim for a compensable rating must be and is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.