Citation Nr: 21029387 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-22 400 DATE: May 13, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for chronic venous stasis ulceration is denied. Entitlement to an evaluation in excess of 10 percent for chronic venous stasis ulceration from March 11, 2013 is granted. FINDINGS OF FACT 1. Prior to March 11, 2013, the Veteran's skin condition is manifested by characteristic lesions involving at least 5 percent, but less than 20 percent of the entire body affected and no more than topical therapy. 2. Since March 11, 2013, the Veteran's skin condition is manifested by symptoms that most closely reflect characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of the exposed areas affected. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for chronic venous stasis ulceration have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. The criteria for a 60 percent rating for chronic venous stasis ulceration have been met from March 11, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. The Veteran served on active duty from May 1969 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) from a January2011 rating decision which, in pertinent part, granted entitlement to service connection for chronic venous stasis ulceration with chronic tinea infection, both feet, evaluated at 10 percent, effective June 9, 2010. In an April 2020 rating decision, the RO granted increased ratings of 60 percent from March 11, 2013 to March 12, 2014 and from August 30, 2017 to August 31, 2018. As these staged ratings do not represent a maximum grant of the benefit sought on appeal, the issue of an increased rating for the Veteran's service-connected skin disability remains pending before the Board. The Board notes that the Veteran has been in receipt of a 100 percent total disability evaluation since March 11, 2013. The Veteran's claims were previously remanded by the Board in a July 2020 decision. The Board finds that the RO has substantially complied with the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial evaluation in excess of 10 percent for chronic venous stasis ulceration As background, the Veteran was granted service connection for chronic venous stasis ulceration with chronic tinea infection, both feet (previously claimed as skin rash on legs and bilateral foot problems/rashes and jungle rot) in a January 31, 2011 rating decision with a 10 percent evaluation. In a letter submitted in August 2011, the Veteran reported that he had been in treatment for many years for chronic venous stasis ulceration with chronic tinea infection in both feet (jungle rot and skin rash). The Veteran's chronic venous stasis ulceration with chronic tinea infection is rated under Diagnostic Code 7806 for dermatitis or 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. Here, the evidence of record demonstrates that the predominant disability is chronic venous stasis ulceration with chronic tinea infection. The Veteran was afforded a VA examination in November 2010. The Veteran reported symptoms began in 1970 while serving in Vietnam. The Veteran reported his feet are chronically scaled and painful with swelling. The Veteran reported the use of topical medications with little benefit. The examiner noted that the Veteran's condition covered 20 percent of the lower extremities and less than 5 to 6 percent of the total body area. The examiner noted that there was a multifactorial component to his issues in the feet and legs with a chronic fungal infection in addition to chronic venous stasis ulceration. The Veteran underwent a second VA examination in March 2012. The examiner noted a history of stasis dermatitis, but no current ulceration. The examiner noted the Veteran previously had to use a Uniboot. The examiner also noted dyshidrotic eczema with a superimposed fungal infection. The examiner noted the constant/near-constant use of topical corticosteroids, but no other treatment or debilitating episodes. The examiner noted eczema covering 5 percent of the total body area nad none of the exposed area. The examiner also noted chronic changes of fissures and desquamation with thickened yellow toenails consistent with onychomycosis. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran's chronic venous stasis ulceration with chronic tinea infection does not more nearly approximate 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. The November 2010 VA examination showed that 5 to 6 percent of the entire body and no specific amount of exposed skin was involved. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran's chronic venous stasis ulceration with chronic tinea infection does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The November 2010 VA examination showed that 5 to 6 percent of the entire body and no specific amount of exposed skin was involved. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include treatment for many years, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran's disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of a rating in excess of 10 percent for chronic venous stasis ulceration with chronic tinea infection for the period prior to March 11, 2013. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an evaluation in excess of 10 percent for chronic venous stasis ulceration from March 11, 2013 The Veteran contends that he is entitled to a higher rating because his chronic venous stasis ulceration with chronic tinea infection, both feet, should be rated at 60 percent or higher because he has constant pain; his sores on the right foot never heal correctly; easy subcutaneous, persistent induration; sharp pains in right foot and chronic swelling; painful jumping and convulsing; bilateral pain since Vietnam; would be intolerable without treatment; reportedly at risk for losing his feet; and potential for gangrene. The Board notes that the Veteran's skin condition has been rated at 60 percent from March 11, 2013; 10 percent from March 13, 2014; 60 percent from August 30, 2017; and 10 percent from September 1, 2018. The Board finds that the Veteran's condition has more closely approximated the criteria for a 60 percent rating from March 11, 2013. As noted above, the Veteran's chronic venous stasis ulceration with chronic tinea infection is rated under Diagnostic Code 7806, for dermatitis or eczema. Here, the evidence of record demonstrates that the predominant disability is chronic venous stasis ulceration with chronic tinea infection. In September 2017, the Veteran underwent an updated VA examination. The Veteran was diagnosed with dyshidrotic eczema and stasis dermatitis. The examiner noted current treatment for a right medial ankle ulcer and use of compression stockings and boots. The Veteran reported the use of several creams for his conditions. The examiner noted the use of constant/near-constant use of antihistamines and other topical medications. The VA examiner noted dermatitis and eczema covering 5 percent of the total body area, but none of the exposed body area. The examiner also noted chronic skin changes to bilateral ankles/feet with desquamation of the skin, loss of hair, and skin dampness present. A right medial ankle ulceration is covered by dressing. The Veteran's VA treatment records indicate that he continues to receive treatment from wound care for itchy, dry skin, and intermittent open wounds. The Veteran has received instructions to elevate legs and continue to use medications to treat his skin conditions. In March 2021, the Veteran underwent another VA examination for his chronic venous stasis ulceration with chronic tinea infection of both feet. The examiner also noted left lower extremity DVT, bilateral lower extremity varicose veins, and right lower extremity thrombophlebitis. The Veteran reported chronic itching, swelling, and sharp pain 20 to 30 times per day at 7-8/10 on left and 10/10 on right. The examiner noted persistent stasis pigmentation, persistent eczema, persistent ulceration, and persistent edema of the lower extremities. The examiner also noted the regular use of a cane and occasional use of a walker due to the chronic venous stasis ulcerations. In a separate skin examination, the examiner noted chronic tinea infection of the bilateral feet and upper inner thighs as well as chronic venous stasis dermatitis of the bilateral lower extremities. Veteran reported podiatry treatment for his venous stasis dermatitis and over-the-counter treatment for his tinea infection without resolution of symptoms. The examiner noted the use of topical corticosteroids for feet and ankles and a topical medication for the tinea infection on the groin. The examiner noted dermatitis covering 5 percent to 20 percent of the total body area and dermatophytosis covering 5 percent to 20 percent of the total body area. The examiner also noted onychomycosis covering less than 5 percent of the total body area. The examiner described thick, scaly stasis dermatitis with hyperpigmented skin, mild edema, and hair loss. The examiner also described the tinea infection as dry, peeling, hyperpigmented, itchy skin in a moccasin distribution in between toes and bottoms of feet with similar rash on bilateral skin folders of upper inner thigh. The examiner further noted that the Veteran's skin condition cause chronic symptoms of bilateral lower leg, ankle, feet, and upper thigh pruritis and dry, cracked skin; chronic itching causing sleep disturbance; and difficulty keeping affected areas dry during the summer impacting his ability to work. The Board has also considered the Veteran's lay statements that his condition has spread across his entire body. The Board finds that the Veteran's skin condition is consistent with the criteria for the highest schedular rating under Diagnostic Code 7806, and, as such, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the evidence supports the Veteran's claim of a rating in excess of 60 percent, but no higher for chronic venous stasis ulceration with chronic tinea infection, both feet. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.