Citation Nr: 21026347 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-24 038 DATE: April 30, 2021 ORDER Entitlement to a rating in excess of 30 percent for chronic dermatitis with tinea pedis and undiagnosed condition prior to March 15, 2021, and in excess of 60 percent thereafter is denied. FINDINGS OF FACT 1. Prior to March 15, 2021, the Veteran’s chronic dermatitis with tinea pedis and undiagnosed condition did not manifest in characteristic lesions involving more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy. 2. Since March 15, 2021, the Veteran is in receipt of a 60 percent disability rating for chronic dermatitis with tinea pedis and undiagnosed condition. This is the highest rating available under Diagnostic Code 7806. There is no allegation that there are identifiable symptoms that are outside the rating provisions. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for chronic dermatitis with tinea pedis and undiagnosed condition prior to March 15, 2021, and in excess of 60 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1974 to December 1975. A Board of Veterans’ Appeals (Board) hearing was held in January 2019 via videoconference. A transcript of the hearing is contained within the claims file. The Board remanded this matter in August 2020 for further evidentiary development. The case has returned to the Board for appellate review. Entitlement to a rating in excess of 30 percent for chronic dermatitis with tinea pedis and undiagnosed condition prior to March 15, 2021, and in excess of 60 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. During the course of this appeal, 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 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 (Diagnostic Code 7800) or scars (Diagnostic Codes 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 31, 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 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, psoralen with long-wave ultraviolet-A light (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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 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. The Veteran is seeking a higher rating for an already established service-connected disability. As such, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking entitlement to a rating in excess of 30 percent for chronic dermatitis with tinea pedis and undiagnosed condition. The Board notes that a March 2021 rating decision issued by the Agency of Original Jurisdiction (AOJ) granted an increased rating from 30 percent to 60 percent, effective March 15, 2021. This is the highest rating available under Diagnostic Code 7806. Thus, the issue on appeal is whether the Veteran is entitled to a rating in excess of 30 percent prior to March 15, 2021. The Veteran has VA treatment notes reflecting his complaints for his skin disability, and he was afforded VA examinations in May 2013, June 2014, and March 2021. Additionally, the Veteran’s private physician submitted a letter in January 2014. At the May 2013 VA examination, the Veteran reported flare-ups of rash to chest, abdomen, back, arms, and legs. He reported use of Clobetasol cream for itching, he has had ultraviolet treatment, and he sunbathes for his skin condition. The examiner noted the Veteran had been treated with topical corticosteroids (clobetasol ointment) for 6 weeks or more but not constant. The examiner additionally noted the Veteran had ultraviolet B phototherapy treatment less than 6 weeks, but not constant or near-constant. The examiner noted dermatitis total body area between 5 and 20 percent and exposed area less than 5 percent. The examiner noted too numerous to count brownish plaques scattered to anterior and posterior torso, bilateral arms, and bilateral legs. Plaques vary in size, no scaling present. Plaques flat, nontender, without ulceration or drainage. A March 2013 VA treatment note shows that the Veteran reported for an annual recheck for his psoriasis, he had a history of doing well with UVB light with his private physician. A November 2013 VA treatment note shows that the Veteran reported for a 6 month recheck, he had received UVB light treatment for widespread psoriasis, he desired to re-start his light treatments as he flares in the winter. There is no indication that the UVB light treatments were constant or near-constant. The January 2014 letter from the Veteran’s private dermatologist states that the Veteran had been followed for widespread psoriasis and the affected skin area is greater than 50 percent of his surface area, the plaques involve his trunk and all four extremities. The physician noted that the Veteran was undergoing ultraviolet light treatments, but the frequency of the treatments were not indicated. At the June 2014 VA examination, the physical examination revealed psoriasis total body area between 20 and 40 percent and exposed area between 5 and 20 percent. The examiner noted too numerous to count brownish plaques scattered to anterior and posterior torso, bilateral arms, buttocks, and bilateral legs. Plaques vary in size, no scaling present. Plaques flat, nontender, without ulceration or drainage. Rule of nines is used to estimate total body surface and also size of Veteran’s palm considered one percent. The examiner noted that the Veteran had not been treated with oral or topical medications, but he had UVB treatment, with the last UVB treatment in February 2014. The examiner noted that the Veteran’s skin condition did not impact his ability to work. As previously mentioned, in August 2020, the Board remanded this matter to afford the Veteran a new VA examination. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in March 2021 which resulted in the increase from 30 percent to 60 percent, effective March 15, 2021. This, as noted, is the maximum schedular rating and there are no contentions advanced that there are findings such that the application of the regular schedular provisions is rendered impractical. As such, there is no basis for an extraschedular rating shown or alleged. The Board also reviewed and carefully considered the Veteran's lay statements and testimony asserting that the severity of his service-connected chronic dermatitis with tinea pedis and undiagnosed condition warrants a 60 percent rating prior to March 15, 2021. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to chronic dermatitis with tinea pedis and undiagnosed condition as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the Veteran's chronic dermatitis with tinea pedis and undiagnosed condition does not warrant an evaluation in excess of 30 percent under either version of the regulation because the Veteran's skin condition affected less than 40 percent of the entire body and the evidence of record does not show that his skin condition required constant or near-constant systemic therapy. See Warren v. McDonald, 28 Vet. App. 194, 197 (2016). Thus, an evaluation in excess of 30 percent for chronic dermatitis prior to March 15, 2021 with tinea pedis and undiagnosed condition is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.