Citation Nr: 21029672 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-19 040 DATE: May 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral tinea pedis, prior to January 15, 2016, is denied. Entitlement to a disability rating of 30 percent for bilateral tinea pedis from January 15, 2016, and 60 percent, but no higher, from August 18, 2020 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 15, 2016, the Veteran's service-connected bilateral fungal infection of the feet did not affect 20 percent or more of the entire body or exposed areas, nor did it require systemic therapy treatment. 2. From January 15, 2016, the Veteran's service-connected bilateral fungal infection of the feet has required systemic therapy treatment for a total duration of six weeks or more, but not constantly, during the past 12-month period. 3. From August 18, 2020, the Veteran's service-connected bilateral fungal infection of the feet has required constant or near-constant systemic therapy treatment during the past 12-month period. 4. The Veteran was not rendered unable to obtain gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral tinea pedis prior to January 15, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7813-7806. 2. The criteria for entitlement to a disability rating of 30 percent, but no higher, for bilateral tinea pedis from January 15, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7813-7806. 3. The criteria for entitlement to a disability rating of 60 percent, but no higher, for bilateral tenia pedis from August 18, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7813-7806. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 2002 to December 2002, and from March 2003 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from the June 2013 Department of Veteran's Affairs (VA) Regional Office (RO) rating decision. The factual and procedural history accrued in this matter has been set forth in detail in the Board's June 2020 decision. The Veteran was initially service connected for bilateral tinea pedis, rated as noncompensable, effective May 22, 2006. The rating was subsequently increased to 10 percent, effective December 16, 2011. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 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 service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. A Veteran's entire history is reviewed when assigning a disability evaluation. Further, in determining the level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Correspondingly, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the period on the appeal, the assignment of staged ratings is necessary. 1. Entitlement to a disability rating in excess of 10 percent for bilateral tinea pedis The Veteran's bilateral fungal infection of the feet was rated under Hyphenated Diagnostic Code (DC) 7813-7806. VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801,7802,7817,7819,7825, 7826, 7827,7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. Under the previous regulations, Diagnostic Code 7806 provided the following: a noncompensable rating is warranted if the skin condition covers 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-month period; a 10 percent evaluation is warranted if the skin condition covers 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; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period; a 30 percent evaluation is warranted if the skin condition covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when 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 evaluation is warranted if the skin condition covers 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 are required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2008). Under the new regulations, effective August 2018, Diagnostic Code 7806 will be rated under a General Rating Formula for Skin, under which a noncompensable rating will be assigned if the skin condition covers 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-month period. A 10 percent rating will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) 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 will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) 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 will be assigned if the disability meets at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) 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. Alternatively, the disability can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7806. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, 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. Id. at 1355. The Federal Circuit acknowledged 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, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Effective August 31, 2018, VA regulations explicitly state that for the purposes of the skin disability ratings, "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) (2018). A. Prior to January 15, 2016 The Veteran was afforded a VA examination in October 2013 at which time it was noted that the Veteran had tinea pedis condition. At that time, the Veteran treated the fungal infection of the foot with topical tolnaftate with no relief. The symptoms reported were itchy, scaly, sometimes painful rashes between the toes. The Veteran was self-treating and attempting to keep the feet dry. It was also noted that there was no change in the Veteran's condition since May 2013. During this period on appeal, an evaluation higher than 10 percent was not warranted because the Veteran required no more than topical therapy for treatment. B. From January 15, 2016 The Veteran underwent another VA examination in January 2016 in which the provider noted changes in the Veteran's condition. The examiner stated, "theare(sp) are changes on skin of bottom of feet and some macerated skin in the interdigital spaces between some toes." See January 2016 VA examination. The Veteran indicated in the July 2019 Board hearing that his condition has been progressively getting worse. The Board finds that a 30 percent evaluation is warranted during this period on appeal because the Veteran's tenia pedis has required systemic therapy treatment for a total duration of six weeks or more during the past 12-month period. The January 2016 examiner listed the use of ketoconazole cream for the stated duration. The record also contains VA treatment records that lists topical clotrimazole for fungal infection, oral fluconazole for fungal infection, and two different dosage forms of ketoconazole for fungal infection. See, e.g. March 2014, January 2015, October 2015 VA treatment records. The Veteran's records also contain a 90-day prescription for oral terbinafine for fungal infection in March 2016. In sum, during this period on appeal, the Veteran's condition required systemic antifungal therapy for more than six weeks, but not continuous. A higher 60 percent evaluation is not warranted because the Veteran's bilateral foot condition did not require continuous, or near-continuous use of systemic treatment. As such, a 30 percent disability evaluation, but no higher, is warranted for this period on appeal. C. From August 18, 2020 The Veteran was afforded another VA examination for his bilateral foot condition in August 2020. The Veteran reported cracking, swelling, pain and pruritus between his toes and at the plantar surfaces of his feet continuing from 2002. The Veteran described his pain as "burning and pins and needles." He also reported that he began using a cane for his foot condition three years ago. The examiner listed the use of daily fluconazole, meloxicam, diclofenac gel, phytoplex powder, and terbinafine cream. The examiner specified oral and topical use with constant, or near-constant duration in the past 12 months. This corresponds with a 60 percent disability rating, and is the highest possible rating for the Veteran's diagnosis of tenia pedis. As such, a 60 percent rating for this period on appeal is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board has considered whether the Veteran is entitled to a total disability rating based upon individual unemployability (TDIU). The issue of entitlement to a TDIU is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the July 2019 Board hearing, the Veteran stated that he had to miss work to go to the doctor and due to the symptoms he was experiencing from his feet. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual Veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the Veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2018). In determining whether the Veteran is eligible to receive TDIU benefits prior to August 18, 2020, the Board observes that the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU. Specifically, prior to August 18, 2020, the Veteran's only service-connected disability was bilateral tinea pedis, evaluated as 30 percent disabling. In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). This matter was referred to the Director of Compensation Services for extraschedular consideration in January 2021. The Director noted that the Veteran has not had marked interference with employment or frequent periods of hospitalization due to his condition. They concluded that the totality of the evidence fails to support a contention that the Veteran's tenia pedis warrants extraschedular consideration. For these reasons, the Board declines to remand this issue for referral for extraschedular consideration. Upon a grant of an increased rating from August 18, 2020, the Board observes that the Veteran's service-connected disability meets the schedular criteria for a TDIU from this date. 38 C.F.R. § 4.16(a) (2017). In the August 2020 VA examination, the examiner noted that the Veteran's skin condition impacts his ability to work. The examiner noted that the "Veteran is limited in ability to walk or stand for prolonged periods of time." (Continued on the next page) The Board finds that the Veteran's service-connected disability does not preclude him from obtaining and maintaining gainful employment. In adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1Vet. App.164 (1991). The Veteran's occupational history has primarily consisted of working in construction and as an electrician. The record does not establish that the Veteran could not obtain and follow sedentary employment, or even physical labor employment that offered accomodation for the Veteran's service-connected disability. The notion that the Veteran cannot walk or stand for prolonged periods of time does not totally preclude him maintaining employment. The Veteran's level of impairment is best represented by the level of impairment contemplated by the assigned disability rating. The central inquiry is whether the Veteran's service-connected disability, alone, is of sufficient severity to preclude the Veteran from obtaining and maintaining all forms of substantially gainful employment. Decreased productivity or missed days of work does not support a finding that the Veteran is totally precluded from all forms of employment due to his tinea pedis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.