Citation Nr: 21030590 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-15 158 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral tinea unguium pedis is denied. FINDING OF FACT The preponderance of the evidence does not establish that the Veteran's bilateral tinea unguium pedis affects 20 to 40 percent of the entire body or exposed areas, or that systemic therapy is required for a total duration of six weeks or more. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for bilateral tinea unguium pedis have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1963 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In April 2018, July 2019, and December 2020, the Board remanded this matter to the RO for further development. Entitlement to a rating in excess of 10 percent for bilateral tinea unguium pedis The Veteran seeks an increased rating for his service-connected bilateral tinea unguium pedis. 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. In the present case, throughout the appeal period, the Veteran has been in receipt of a 10 percent rating for his bilateral tinea unguium pedis under DC 7806. The Board notes that the criteria for rating skin disabilities were amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). Because the Veteran's claim was pending at the time of the amendment, the Board must consider both sets of criteria pre and post August 13, 2018. The Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under both versions of DC 7806, skin conditions can be rated based on the percentage of the Veteran's body affected by his skin disease or based on the types of treatment (topical or systematic therapy) and the frequency or direction of such treatment. Under the old rating criteria (pre-August 13, 2018), a 10 percent rating was warranted where at least 5 percent, but less than 20 percent, of the entire body was affected; or, where at least 5 percent, but less than 20 percent, of exposed areas were affected; or, where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than 6 weeks over a 12-month period. A 30 percent rating was warranted where 20 to 40 percent of the entire body was affected; or, where 20 to 40 percent of exposed areas were affected; or, where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of 6 weeks or more, but not constantly, over a 12-month period. A 60-percent rating, the highest rating available under the schedule, was warranted where more than 40 percent of the entire body was affected; or, where more than 40 percent of exposed areas was affected; or, constant or near-constant systemic therapy such as cortico steroids or immunosuppressive drugs was required over a 12-month period. 38 C.F.R. § 4.118, DC 7806 (2017). Additionally, under the old rating criteria (pre-August 13, 2018), systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). In this regard, 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 facts of each case. See id. at 1356. Additionally, the Court has held that if there is systemic therapy, such treatment must be "like or similar to" a corticosteroid or other immunosuppressive drug to warrant a rating on this basis. Burton v. Wilkie, 30 Vet. App. 286 (2018). Therefore, for claims filed prior to August 13, 2018, in considering whether a treatment is systemic, the Board must also consider whether the treatment affects the body as a whole and whether the given treatment is like or similar to a corticosteroid or other immunosuppressive drug. See Burton, 30 Vet. App. at 286. Under the current version (post August 13, 2018), DC 7806 is to be rated under the General Rating Formula for the Skin. The revised criteria provides that a 10 percent rating is warranted where there is 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, 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 there is at least one of the following: 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 6 weeks or more, but not constantly, over the past 12-month period. A 60-percent rating, which is the highest rating available under the schedule, is warranted where there is 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. Under the current version, the rating criteria also clarify that systemic treatment is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. Id. Turning to the evidence of record, the Veteran underwent a skin diseases VA examination in September 2016. At the time of the examination, the Veteran had a long-standing history of onychomycosis with thickened, brittle, and discolored nail plates affecting all ten toes. For treatment, he used over the counter topical antifungal medication (sprays and cream) daily that provided only limited benefit. The Veteran did not have side effects from these medications, and he had not been given any oral medications as of the year prior. He also regularly saw a podiatrist to trim his nails as they were thick and brittle. He reported no constitutional nor systemic symptoms associated with his condition. The VA examiner found that the Veteran's condition had not been progressive and that there had been no significant associated pain or discomfort that limited weight-bearing or ambulation as a direct result of the nail fungus. The examiner further found that his condition did not cause scarring. The Veteran's skin disability affected less than five percent of his total body area and no exposed area. There was no functional impact on his ability to work. The Board notes that the Veteran's previous VA skin diseases examination, in August 2015, and within the one-year period prior to the Veteran's April 5, 2016, increased rating claim on appeal, reflects the same findings as the September 2016 VA examination. In October 2016, the Veteran testified at a RO hearing that he daily treated his bilateral tinea unguium pedis with an over the counter cream between his toes, sprayed his shoes with a powder, and changed his socks. See DRO hearing transcript, pp. 4-5. He also explained that VA trimmed his toenails and that he experienced bleeding with his skin disability. See id. at p. 5. Thereafter, at the January 2018 Board hearing, the Veteran testified that he experienced painful scarring on all of his toes, which break open and bleed. See Board hearing transcript, p. 26. He also confirmed that he experienced skin buildup under each of his toenails necessitating visitation to the podiatrist every four months to remove the skin underneath his nails. See id. at pp. 26-27. At the hearing, his spouse also testified that she had observed the bleeding between the Veteran's toes and that she helped the Veteran apply antibacterial cream on his feet daily. See id at pp. 29-30. In April 2019, the Veteran was afforded another VA skin diseases examination where he was diagnosed with bilateral tinea unguium pedis. He reported that his skin disability had worsened and required the use of multiple medications. Specifically, for treatment, the Veteran used Tolnaftate, Lotrimin, Gold Bond Powder, and CeraVe, all topical medications on a constant/near-constant basis. The examiner found that the Veteran's skin disability affected five percent to less than twenty percent of his total body area and zero percent of his exposed body area. The examiner also noted that the Veteran's condition did not cause scarring and that there was no associated unstable or painful scarring noted upon examination. The examiner further found that the Veteran's disability impacted his ability to work in that he could not wear dark colored socks and experienced frequent irritation that limited his mobility. The Veteran was subsequently afforded a VA scar examination in December 2019. At the time of the examination, the Veteran reported that he experienced pain between all of his toes. He denied any impact of his bilateral tinea unguium pedis on his occupational functioning but noted that the itching could be very irritating and bothersome while changing his socks twice daily was inconvenient. He also reported that he had dry, thickened skin to the heels and lower legs due to the tinea moving up the legs bilaterally. For the reasons discussed in the December 2020 Board decision, the December 2019 scar examination and opinion contains contradictory findings and is inadequate for rating purposes. As such, the Board assigns no probative weight to the December 2019 VA examiner's findings relating to whether the Veteran had an associated scar disability. Thereafter, in February 2021, the Veteran underwent further VA examinations, to include a skin disease examination and a scars/disfigurement examination. The examiner noted that the Veteran had tinea pedis and tinea unguium of both feet and all toenails. At the time of the examination, the Veteran continued to use an over the counter cream and changed his white diabetic socks daily. For treatment, the examiner specified that the Veteran used topical, over the counter antifungal medication on a constant/near-constant basis. The examiner found that the Veteran's skin disability affected less than five percent of the Veteran's total body area and did not affect any exposed body area. The examiner also found that the Veteran had moderately severe tinea pedis of both feet and moderate to moderately severe tinea unguium changes with varying stages as the Veteran's smaller toenails were mildly affected and the big toenails were moderately severe and deformed. The examiner further noted that the Veteran's skin disability negatively impacted his ability to work because if the Veteran had to work, it would be difficult for him to stand and walk for any length of time. The February 2021 VA examiner additionally found that the Veteran did not have any scars related to his bilateral tinea unguium pedis. In making this finding, the examiner noted that she reviewed the claims file, to include the Veteran's hearing testimony and prior examinations of record and noted that the Veteran reported he never submitted any photographs to review. She explained there were no scar disabilities based upon examination and that although the Veteran had intermittent maceration of some areas between the toes that is caused by his foot fungus, the maceration is/are not scars. In this regard, the examiner explained that the macerated areas can crack open and bleed but will usually heal, then recur and breakdown without leaving any true scars. She additionally explained that bleeding can occur between the toes when the skin breaks down, which is the typical behavior of tinea pedis and moist areas between the toes and is directly due the Veteran's tinea pedis (rather than a specific scar condition). The examiner explained that it appeared that the Veteran and his spouse were confusing true scars with the maceration that he had between the toes because when she asked the Veteran to show her his scars, the Veteran pointed to the whitened macerated areas between some of the toes, which are not scars but skin breakdown areas typical of tinea pedis. The examiner explained that she could not determine how often the area between the Veteran's toes crack open and bleed because he first stated that this occurred twice a year then later stated that if he does not use his cream and diabetic white socks, the area will crack open and bleed more. The VA treatment records associated with the claims file for the appeal period are consistent with the VA examinations of record and document that the Veteran had his toenails clipped at VA podiatry at that his skin condition was often characterized as dry, calloused, cracked, and scaly. See e.g., September 2017, April 2018, and March 2019 VA treatment records. Additionally, an August 2020 VA treatment record reflects that the Veteran had a fungal infection under all ten toenails and that his right hallus was extremely thick with fungus, causing pain when he wore shoes and/or ambulated. In light of the above evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's bilateral tinea unguium pedis. As noted above, to receive a 30 percent rating, evidence must show that his bilateral tinea unguium pedis affected 20 to 40 percent of the entire body, 20 to 40 percent of the exposed areas, or required systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. Here, all the VA examinations for the appeal period reflect that the Veteran's skin disability affected less than twenty percent of his total body area and did not affect his exposed body area. Although the Veteran reported to the December 2019 VA examiner that his tinea was moving up to his legs bilaterally, the VA examinations, including the subsequent VA examination in February 2021, do not reflect the Veteran's bilateral tinea unguium pedis affected other areas of his body aside from his feet and toenails. Additionally, although the Veteran reported that the April 2019 VA examination was inadequate because the VA examiner looked at his feet from a distance and did not examine the area between his toes, see June 2019 Correspondence, the findings from the April 2019 VA examination are generally consistent with the other medical examination findings of record and the record does not otherwise indicate these examination findings were inaccurate. The evidence also shows that the Veteran used multiple topical medication to treat his tinea unguium during the appeal period. The Board finds that the Veteran's medication regiment during the appeal period is more consistent with topical therapy, rather than systemic therapy, as the Veteran used over-the-counter treatments in the form of creams, sprays, and powders to apply to the affected area. The evidence does not indicate that the Veteran used oral medications during the appeal period nor that any of the treatment he did utilize involved the whole body given that treatment was applied only to the affected portions of his body, which were his feet and toe region. In other words, there is no suggestion that the Veteran's bilateral tinea unguium pedis required systemic therapy such as corticosteroids or other immunosuppressive drugs administered through any route other than the skin, as required by the next-higher rating. Indeed, the Veteran's treatments were not listed as systemic on any of the pertinent VA examinations of record. As such, although the February 2021 VA examiner described the Veteran's bilateral tinea pedis as moderately severe and bilateral tinea unguium as moderate to moderately severe, the evidence of record does not establish that the Veteran's skin disability affected at least 20 percent of his entire body or exposed area or required systemic therapy for a total of six weeks or more to warrant the next-higher rating. The Board acknowledges the Veteran's belief that his bilateral tinea unguium pedis symptoms are more severe than the current rating reflects. The Board has carefully considered the Veteran's contentions with respect to the nature and severity of his service-connected bilateral tinea unguium pedis and notes that his lay testimony is competent to describe certain symptoms associated with this disability. However, the Board finds that the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. Moreover, the Board finds that the Veteran's history and symptom reports, including his symptoms of pain and its impact on his mobility, are already contemplated by his currently assigned 10 percent rating. The Board has also considered whether a higher or separate rating is warranted under any other DC. The Board finds that the most probative evidence of record does not show that the Veteran's skin disability ever resulted in scarring that would warrant a higher rating and/or separate rating under DCs 7801-7805. 38 C.F.R. § 4.118. In this regard, the Board finds that the February 2021 VA opinion is probative on this matter as this opinion sets forth, with detailed rationale, that the Veteran's bleeding is attributed to his tinea pedis and explains, after review of all the examinations and lay statements, that the Veteran does not have any associated scarring. Specifically, the February 2021 VA examiner explained why the Veteran and his spouse might believe that the maceration between his toes constituted scarring even though such is not indicative of a scar disability. Thus, the Board finds that the Veteran's bilateral tinea unguium pedis has not resulted in scarring to warrant a higher rating and/or separate rating. Additionally, when comparing the Veteran's disability picture with the symptoms contemplated by the schedular criteria under which his rating is currently assigned, the Board finds that the Veteran's symptoms are contemplated by the rating assigned, to include any functional impairments described by the Veteran. In this regard, the Veteran's symptoms include dry skin, itchiness, bleeding, cracking, and thickened, brittle, and discolored nail plates. The functional impairment from the Veteran's disability is pain that impacts his mobility. As these symptoms, including pain, are already compensated under the 10 percent rating assigned, a higher or separate rating is not warranted. Accordingly, the preponderance of the evidence is against a finding that his disability arises to an impairment contemplated by a 30 percent or higher rating. Therefore, a rating in excess of 10 percent for the Veteran's bilateral tinea unguium pedis is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a final point, while the February 2021 VA examiner indicated that the Veteran's bilateral tinea unguium pedis would impact his ability to stand and walk at work, the Veteran has not alleged, and the record does not show, that he is unable to obtain or maintain substantially gainful employment due to his service-connected disability. Rather, the evidence reflects that the Veteran has been retired for the entire appeal period and used to work as a truck driver. See July 2020 VA treatment record. Moreover, the February 2021 VA examiner did not state that the Veteran would be unable to obtain or maintain substantially gainful employment, nor that his disability would preclude his ability to work, but rather explained the functional impact of the Veteran's disability on his ability to work in settings involving standing and walking. As such, the Board finds that a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is not reasonably raised at this time. Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is advised of his right to submit a TDIU claim if he believes that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.