Citation Nr: 21025461 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-13 428 DATE: April 28, 2021 ORDER Entitlement to an initial 10 percent rating for bilateral onychomycosis and athlete's foot (tinea pedis), is granted. FINDING OF FACT A recent VA examiner found the Veteran's onychomycosis and athlete's foot affect at least 5 percent of total body area. CONCLUSION OF LAW The criteria for an initial 10 percent evaluation for bilateral onychomycosis and athlete's foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1995 to December 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2019 and November 2020 at which time it was remanded for further development. That development having been completed; this claim is once again before the Board. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Entitlement to an initial compensable rating for onychomycosis and athlete's foot (tinea pedis), bilateral feet The Veteran's bilateral onychomycosis and athlete’s foot (skin disability) is rated under Diagnostic Code 7806, for dermatitis and eczema. VA amended the criteria for rating skin disabilities effective from 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, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 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 months. A 10 percent rating is 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 is 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 is 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that 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, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for 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 characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: 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, 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 at least one of the following: characteristic lesions involving more than 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 assigned for at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Upon review of the record, the Board finds that an initial rating of 10 percent for the Veteran’s skin disorder is warranted. Private medical treatment records show that the Veteran was diagnosed with onychomycosis and athlete’s foot (tinea pedis) in February 2012. At a June 2013 VA examination, the Veteran reported onychomycosis affected all ten of his toes. The examiner noted that zero percent of exposed area and less than five percent of total body area were affected. However, the examiner also found that there was a wide eruption in different stages of development over lower portions of both feet that could include tinea pedis, contact dermatitis or skin infection. It was noted that the Veteran had not taken systemic or topical medications in the past 12 months. VA treatment records from August 2013 show the Veteran was prescribed Lamisil topical cream for twice a day and Mycolog topical cream for three times a day. In September 2016, treatment records show the Veteran was prescribed Terbinafine cream and oral tabs. In November 2016, the Veteran developed a rash from his feet to his arms and face. He was prescribed a topical medication and antibiotics for the infection. At an April 2018 VA examination, the examiner only diagnosed the Veteran with onychomycosis and noted that zero percent of the exposed area and less than five percent of total body area were affected. He also noted the Veteran was only taking topical antifungal creams for his skin condition for six weeks or more but not constant. The examiner did not characterize such treatment as a corticosteroid or an immunosuppressive. A VA treatment record from March 2019 noted the Veteran had worsening tinea pedis and was prescribed Terbinafine cream. In May 2019, the Veteran reported to the emergency department for a rash. Follow up notes show he discontinued Terbinafine due to an allergy in June 2019. A December 2019 VA examiner noted that the Veteran’s onychomycosis and athletes’ foot both approximated less than five percent of the exposed and total body area. When combined, however, the percentage affecting the total body was 5 percent and for the exposed areas, less than 5 percent. She noted the Veteran was taking Terbinafine orally daily and also a topical antifungal power for his skin condition for six weeks or more but not constant. The examiner did not characterize such treatment as a corticosteroid or an immunosuppressive. The examiner stated that athletes’ foot is a progression of nail fungus when the fungal infection spreads to areas between the toes and the skin of your feet. She opined that the Veteran’s athletes’ foot is at least as likely as not due to the Veteran’s onychomycosis. Although not considered an aspect of the Veteran’s service connected skin condition prior to this time, it became so following an April 2020 rating action. Given the foregoing, the Board finds the Veteran’s skin condition affected at least 5 percent of the total body. Therefore, an initial rating of 10 percent is warranted under the old and new criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board finds that a rating in excess of 10 percent, however, is not warranted at any point during the period under review. In a January 2021 medical opinion, the examiner noted the medications used to treat the Veteran’s onychomycosis were Lamisil, Mycolog and Terbinafine, both cream and oral. He also noted that Desonide and Triamcinolone were not used to treat onychomycosis but rather the rash that developed after using Terbinafine oral. The medications are considered topical, with the exception of Terbinafine oral which is considered systemic. However, although the Veteran has been treated with Terbinafine orally, the examiner opined that Terbinafine in topical or oral form is an antifungal medication, meaning it results in fungal cell death, and that it is not a steroid or immunosuppressive drug. It is a complete separate class of medications and should not be considered “like” corticosteroids or immunosuppressives. Thus, the record does not show that the Veteran has been treated with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, and therefore the Veteran does not qualify for a 30 percent evaluation based on using systemic therapy for a total duration of 6 weeks or more under the old or new rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Accordingly, an initial rating of 10 percent, but no higher, is warranted for the Veteran’s service-connected skin disability. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.