Citation Nr: 21025426 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-36 565 DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 10 percent from February 12, 2015 for tinea cruris claimed as groin rash and bilateral athlete’s foot (dermatophytosis) is denied. FINDING OF FACT The Veteran’s skin condition does not more nearly approximate the next highest rating criteria in the diagnostic code. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent from February 12, 2015 for tinea cruris claimed as groin rash and bilateral athlete’s foot (dermatophytosis) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the US Marine Corps from March 1973 to March 1977. This matter comes before the Board of Veterans’ Appeals (Board) initially from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. In March 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in October 2019 and in August 2020. In both decisions, the Board remanded the issue for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The Board is now satisfied that there was substantial compliance with its remand directives and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent from February 12, 2015 for tinea cruris claimed as groin rash and bilateral athlete’s foot (dermatophytosis) The Veteran contends that he is entitled to a rating in excess of 10 percent for his tinea cruris, as well as his bilateral athlete’s foot. The Veteran is currently rated at 10 percent for his tinea cruris and bilateral athlete’s foot. 38 C.F.R. § 4.118, Diagnostic Code 7813. 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 military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Claims pending prior to the effective date will be considered under both the old and new schedules, and whatever schedule is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new schedule will be applied. Because the Veteran’s claim was filed on February 12, 2015 the Board will consider both schedules and apply the one most favorable to the Veteran. Under the pre-August 2018 rating criteria, Diagnostic Code 7813 provided for a zero percent rating where there is less than five 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 10 percent rating is assigned where there is involvement of at least five percent, but less than 20 percent, of the entire body or at least five 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 is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. Under the post-August 2018 rating criteria, a zero percent rating is assigned when there is no more than topical therapy required over the past 12-month period and characteristic lesions involving less than five percent of the entire body affected; or characteristic lesions involving less than five percent of exposed areas affected. A 10 percent rating is assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-months. A 30 percent rating is assigned for 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, (psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned 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. 38 C.F.R. § 4.118 (August 13, 2018). Under the new schedule, “systemic therapy” refers to treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin. “Topical therapy” refers to treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of the skin are involved. 38 C.F.R. § 4.118 (b). Only the highest evaluation shall be used if two or more skin conditions involve the same area of skin. Under the pre-2018 criteria, topical corticosteroids, such as skin creams, do not categorically constitute “systemic therapy” under 38 C.F.R. § 4.118, but may constitute “systemic therapy” if administered on a large enough scale to affect the body as a whole. Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017). In other words, some topical treatments may constitute “systemic therapy,” depending on the facts of the case. Burton v. Wilkie, 30 Vet. App. 286. In addressing whether a topically applied corticosteroid is a systemic therapy, the Board must consider two questions. First, “whether a topical treatment operates by affecting the body as a whole in treating the veteran’s skin condition.” Id. Second, “whether a given treatment is ‘like’ a corticosteroid or other immunosuppressive drug....” Id. Neither question categorically requires a medical opinion to be answered. Burton only applies to claims filed prior to August 13, 2018. The Veteran received a VA examination in May 2012, where the examiner opined that it is more likely than not that tinea cruris is etiologically related to military service. The rash was found to be covering less than 5 percent of the total body area of the Veteran. The examiner noted that the Veteran had been treating the condition with a topical medication on a constant basis over the past 12 months. In May 2015, the Veteran received another VA examination, this time finding the Veteran has chronic tinea pedis since his military service. The examination noted that the Veteran was using topical medication in the past 12 months to treat his skin condition for six weeks or more, but not constantly. The examiner noted that the skin condition covered less than 5 percent of the Veteran’s total body area. The examiner stated that the tinea pedis (bilateral athlete’s foot) was more likely than not connected to the tinea pedis he incurred in-service. At the March 2019 Board hearing, the Veteran testified that his skin condition causes the skin to become moist, raw, and to have a foul odor. He currently treats his skin condition with a topical ointment every day and sometimes as often as three times a day. The Veteran also uses a topical powder to relieve the condition. The Veteran testified that the skin condition on his foot can get so severe, that he sometimes cannot wear the closed shoes required for his work and he has to take days off to let the skin dry out. He also alleges that when the condition flares up, it affects more than 5 percent of his total body area. The Veteran was afforded a new VA examination in December 2019. The examiner noted that the Veteran was service connected for tinea cruris and tinea pedis (dermatophytosis). The Veteran stated that the skin condition stays steady until the summer when it flares up. Upon examination, it was noted that the skin condition near the groin produces dry and scaly skin while the feet give off a foul odor. The examiner also reported that the dermatophytosis covered less than 5 percent of the total body area and 0 percent of the exposed body area. An addendum opinion was also issued in May 2020 where the examiner opined that the skin condition would have no functional impact on the Veteran in a physically demanding or sedentary work environment. The Veteran received another VA examination in November 2020. The examiner noted that the Veteran has a diagnosis of dermatophytosis, specifically listed as tinea cruris and bilateral athlete’s foot. The skin was found to be dry and irritated in the groin and on the feet of the Veteran. The examiner also reported that the Veteran’s dermatophytosis has been treated with the use of a topical antifungal cream that has been in constant use for the past 12 months. The VA examination reported that the Veteran’s skin condition causes characteristic lesions on approximately 5 to 20 percent of the total body. Finally, the examiner sated that the skin condition impacts the Veteran’s ability to work because the Veteran cannot tolerate wearing shoes during the worst flare-ups. After a thorough review of the record, the Board finds that a higher rating in excess of 10 percent is not warranted for the Veteran’s tinea cruris and bilateral athlete’s foot under either version of Diagnostic Code 7813. Under the old regulations, the evidence does not show that the Veteran’s condition affected 20 to 40 percent of the entire body or 20 percent to 40 percent of the exposed areas affect, or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Significantly, the most recent exam showed the tinea cruris and athlete’s foot affected more then 5 but less than 20 percent of the total body, which is appropriate for the current 10 percent rating. While the constant use of a topical medication was noted in the record, the Veteran was applying it to specific areas of the body. It was not affecting the body as a whole. In fact the May 2020 examiner clearly explained that ketoconazole cream is not a systemic treatment and works locally on the area applied to. The treatment records and examinations further reflect the Veteran applied the cream to specific areas only. Therefore, it does not qualify as a systemic therapy and Burton does not apply. Under the amended regulations, the evidence also does not show 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. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a rating in excess of 10 percent for tinea cruris and bilateral athlete’s foot under the old regulations or the amended regulations in effect beginning August 13, 2018. The Board acknowledges the Veteran’s statement that his skin disorder is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a higher rating have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for a skin disorder. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Extraschedular Rating To accord justice in the exceptional case where the criteria in VA’s Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability may be assigned. 38 C.F.R. § 3.321 (b)(1). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321 (b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant’s disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant’s level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant’s disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant’s disability picture meets this second step, then the third and last step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, an extraschedular rating is warranted. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom.; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Court has affirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Here, the Board acknowledges the Veteran’s flare-ups, specifically of the bilateral athlete’s foot that precludes the Veteran from wearing closed shoes. The Board also acknowledges that this can lead to the Veteran needing to take off from work. However, the evidence of record does not show that this case presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. Therefore, a remand for an extraschedular rating is not warranted. (Continued on the next page)   Thus, the criteria for a rating in excess of 10 percent have not been met. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.