Citation Nr: 21026643 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-20 644 DATE: May 3, 2021 ORDER Entitlement to an initial compensable rating for tinea versicolor is denied. FINDING OF FACT The Veteran's tinea versicolor did not affect an area of at least 5 percent of the entire body or 5 percent of the exposed area and did not require systemic therapy during the past 12-month period. CONCLUSION OF LAW The criteria for a compensable rating for tinea versicolor have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.14.14, 4.118, Diagnostic Code (DC) 7806, 7820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to January 2013. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Board previously remanded the instant matter for additional development in September 2018, specifically to obtain a new examination to indicate the percentage of the Veteran's body that is affected by the service-connected tinea versicolor. A VA examination was conducted in August 2019. Increased Ratings Tinea Versicolor Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.10. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the 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. The skin disability regulations changed during the pendency of the appeal. See 83 Fed. Reg. 32,592 (July 13, 2018). 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." DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. The diagnostic code for tinea versicolor is 7813, which is evaluated under the general rating formula for the skin, as well as DC 7820, Infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases). The Veteran's tinea versicolor is currently rated as 0 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the new criteria, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent 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 less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: 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 six weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted 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. Under the former criteria, a 10 percent rating is warranted for 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 applies 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 are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating applies where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the United States Court of Appeals for Veterans Claims in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of DC 7806. 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 immunosuppressive 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.' 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. After a complete review of the record, the Board finds the Veteran's tinea versicolor has not been manifested by involvement of 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. Further the evidence shows the disorder has not required any systemic therapy during the past 12-month period. A review of treatment records shows that in March 2013, the Veteran reported to a Licensed Clinical Social Worker that he had a persistent papular or nodular skin rash. In July 2014, a review of systems found no rashes. In March and May 2015, a review of systems found he denied any changing lesions of the skin. In October 2015, a skin risk assessment was negative. In January 2018, the Veteran initially reported no persistent skin rash, then stated he had intermittent itching/flaking of the groin area for one month. Triggers were warm weather sweating which he treated with over the counter drugs. He also reported intermittent flaky rashes on the elbows, feet and neck. Physical examination revealed "min hyperpigmented rash; bilat groin area." The diagnosis was groin rash, tinea cruris and noted he would try ketoconazole cream. In July 2018, the Veteran did report he experienced unexplained rashes; however, no findings of a skin rash were reported at the time. In January 2019, a pertinent review of systems found no rashes, bruising, prurititis or wounds. In February and May 2019, a physical therapy consults found the skin to be normal. The Veteran was afforded a VA skin examination in June 2014. There, he reported a recurrent rash that was worse in the summer months that affects his chest and back which he treated with various over the counter medications. See also May 2016 VA Form 9 and August 2015 Notice of Disagreement. At the examination, he reported it occurred 1 to 4 months out of the year. There were no visible skin conditions at the time. No functional impairment was reported, although the examiner noted the diagnosis was based on the classic description of tinea versicolor. The VA examiner did not indicate the percentage of the Veteran's body that was affected by the service-connected tinea versicolor when it was active. As a result, the Board remanded the claim in September 2018. At the August 2019 VA examination, the examiner found there were no active lesions visible and the total body affected area and exposed area was 0 percent. The only treatment the Veteran uses for his skin condition are topical, both of which were used for 6 weeks or more in the last 12 months, but not a constant 6 weeks. There is no medical evidence these topical creams were used in such a way as to constitute systemic medication. No functional impairment was reported. The Veteran himself reported that during the worst time, in an active stage, the skin condition affects less than 5 percent of exposed area and between 5 percent but less than 20 percent of his total body area. In his Form 9, he limited his appeal to tinea versicolor, explaining the skin problem affected his face, neck and groin. When there is a history of remission and recurrence of a condition, the duty to assist encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time). In Voerth v. West, however, the Court found Ardison inapplicable where the Veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). Here, the facts are distinguishable from Ardison and similar to Voerth based on the evidence above. During the appeal period, the records showed one flare up. Under Voerth, an examination in an active phase of the condition was not required. For the foregoing reasons, the Board finds the Veteran is not entitled to an initial rating in excess of 0 percent for tinea versicolor. In this regard, the Board finds while the Veteran was prescribed topical cream for treatment of his skin disorder, there is no evidence his treatment resulted in systemic therapy to support a higher rating. The use of the topical hydrocortisone and ketoconazole prescribed to the Veteran was applied to less than 5 percent of his entire body for 6 weeks, but not constantly. This more closely approximates "topical therapy" as the topicals used pertains to a certain area of the Veteran's skin and affects only the area to which it is applied. Such treatment has not been administered on a large enough scale such that it affected the Veteran's body as a whole. Accordingly, an initial rating in excess of 0 percent is not warranted for tinea versicolor under the old or new criteria pertaining to the skin. The Veteran's belief he is entitled to higher ratings for his tinea versicolor is outweighed by the objective medical findings of record. While he is competent to report his skin condition and credible as to his consistent reports, see McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (a veteran is competent observe skin conditions such as boils, blotches, and rashes), the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded noted above following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a higher rating. In coming to this conclusion, the Board finds the medical records to be complete and reflective of how the skin was affected during the appeal period. Ultimately, on objective examination, his tinea versicolor was shown to affect none of the exposed or total area and did not require the use of systemic therapy. Accordingly, the Board finds a preponderance of the evidence is against an initial rating in excess of 0 percent for tinea versicolor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Emily Tamlyn Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.