Citation Nr: 21041388 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-19 338 DATE: July 9, 2021 ORDER Entitlement to an evaluation in excess of 10 percent disabling for service-connected pseudofolliculitis barbae (PFB), onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis is denied. Entitlement to separate evaluations for PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis is denied. FINDINGS OF FACT 1. The Veteran's PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis covered at least 5 percent but less than 20 percent of the entire body and exposed areas; and no more than topical therapy was required during the past 12-month period. 2. The assignment of separate evaluations for the Veteran's PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis are not warranted as separate evaluations for pseudofolliculitis barbae, onychomycosis/tinea pedis, are impermissible under VA regulations because doing so would constitute pyramiding. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 10 percent disabling for service connected PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis have not been met. 38 U.S.C. §§ 1154 (a), 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2020). 2. The criteria for establishing entitlement to separate evaluations for PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis have not been met. 38 U.S.C. §§ 1154 (a), 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from December 1984 to July 2005. Pursuant to a May 2019 Board decision, this matter was remanded for additional development to include scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. As a preliminary matter, the Board observes that agency of original jurisdiction (AOJ) issued a Rating Decision, dated August 2020, which increased the assigned evaluation for the Veteran's service-connected PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis to 10 percent disabling, effective May 26, 2016. Also, a new and separate evaluation was granted for scarring of the neck due to one of the multiple skin conditions (PFB) and assigned an evaluation of 30 percent effective May 26, 2016. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims 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). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected pseudofolliculitis barbae, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis The Veteran contends that his service-connected pseudofolliculitis barbae, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis is more disabling than currently evaluated. He further contends that his skin conditions should be separately rated. The latter will be addressed in section 2. Prior to March 2016, the Veteran's service-connected skin condition was evaluated as non-compensable pursuant to Diagnostic Code 7806. See 38 C.F.R. § 4.118. Thereafter, the assigned evaluation was increased to 10 percent disabling pursuant to Diagnostic Code 7813. Id. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. Since the Veteran filed his initial claim in July 2012, the Board will evaluate his skin condition under both the pre-and post- August 13, 2018, criteria, noting that the revised criteria may not be applied to any time period before the effective date of the change. Prior to August 13, 2018, Diagnostic Code 7813 (including tinea unguium or onychomycosis) provided that such disorder were to be rated as disfigurement of the, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. 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 (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 7813. A new General Rating Formula was implemented for the skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. To establish a 10 percent disability rating for any of the aforementioned diagnostic codes, the Veteran must demonstrate at least one of the following: 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, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks over the past 12-month period. Additionally, the Veteran must also demonstrate no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than five percent of the entire body affected; or, characteristic lesions involving less than five percent of exposed areas affected. The new General Rating Formula provides that, in the alternative, "rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to Diagnostic Code 7824." See 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The revised regulations also provide a bright line rule defining "topical therapy" as treatment administered through the skin and "systemic therapy" as treatment administered through any route other than the skin. 38 C.F.R. § 4.118 (a). Review of the record indicates that the Veteran has continued to seek treatment for skin rashes. In June 2012, a nephrology evaluation indicated that the Veteran reported eczematous scaly patches on bilateral ankles without induration or erythema. Two macular patches were also described as hyperpigmented on the left abdomen without erythema. Some symptom improvement was noted with use of topical steroid cream. One month later, the rash was described as itchy, scaly, and callused patches of dry skin on the bilateral lower extremities. On examination in November 2011, current diagnoses included PFB on the anterior neck, onychomycosis impacting the right great toe, tinea pedis affecting the bilateral feet, and eczema/dry skin located along the distal shins. During the clinical interview, the Veteran indicated that he developed a facial rash with close shaving while on active duty. Initially, he was diagnosed with PFB. A from the close shaving requirement was granted. Thereafter, the Veteran experienced some symptom improvement. Current symptoms include recurrent skin rashes with shaving closely. Dry skin involving the left and right distal shins began in 1991. Progressive symptoms were reported since separation. Use of topical creams provided limited symptom improvement. Also, in 1991, skin discoloration was observed along the right great toenail, with little symptom improvement. Prescribed treatments have included topical creams and oral medications. The Veteran denied any experience with pain. An onset of tinea pedis, described as a rash with dryness and a whitish deposit affecting the toes also dates back to the 1990s. Over the previous 12 months, the Veteran denied use of oral medications or topical creams to treat his symptoms. No treatments other than systemic or topical medications were endorsed. A physical examination revealed eczema impacting lest that 5 percent of the total body area and none of the exposed area. Infections of the skin impacted less than 5 percent of the total body area and less than 5 percent of the exposed area. Visible manifestations of the Veteran's skin condition were described as eczema or dry skin along the distal tibia bilaterally, tinea pedis described as whitish deposits between the toes and along the arches of the bilateral feet, and onychomycosis described as a yellowish skin rash along the right great toe. No benign or malignant neoplasms or metastases was deemed related to the listed diagnoses. No other pertinent physical findings were identified. No functional impact was identified. During a dermatology consultation, dated March 2016, the Veteran was evaluated for two skin conditions. Thickening was observed on the right medial ankle along with a lengthy history of dry skin with texture changes impacting the bilateral lower legs. Prior treatments included Clobetasol ointment and Clotrimazole solution. Current diagnoses were listed as lichen simplex chronicus, stasis dermatitis, xerosis of the lower legs and feet, and ichthyosis vulgaris. Given the limited response to antifungals, the Veteran's condition was deemed unlikely related to tinea pedis. Other VA treatment records listed current diagnoses of ichthyosis vulgaris and xerosis impacting the lower legs from knee to foot, with tessellating scales. The Veteran's symptoms impacted approximately 10 percent of the body surface area. A separate medical record documented chronic brawny edema with ichthyosis of the bilateral calves, ankles, and feet. On examination in May 2016, current diagnoses included PFB (1984), onychomycosis/tinea pedis (1986), and ichthyosis vulgaris (dry skin forelegs) (1990). During the clinical interview, the Veteran reported, a facial rash with ingrown hairs in the bearded area which developed due to shaving requirements in-service. To improve his symptoms, he reduced the frequency of close shaving and uses over the counter creams. Healed punctate scars were observed about the entire bearded area of face. The scars measured as 31 by 17 centimeters (cm). Abnormal pigment or texture was described as diffusely roughed skin in the bearded area of the head, face, and neck. The approximate total area of the head face and neck with abnormal texture was described as 527 cm. No limitation of function was associated with the disfigurement of the Veteran's head, face, or neck. No photographs were available. Flareups recur twice monthly, as he is required to shave closely to meet professional/job-related requirements. To treat toenail fungus, the Veteran endorsed use of topical creams. Although oral medications were previously prescribed with minimal symptom improvement. Dry skin impacting the bilateral shins and feet worsened with prolonged standing, to include as due to edema related to blood pressure. Scarring and disfigurement caused by the Veteran's skin conditions was associated as PFB. Some pain was noted. Over the previous 12 months, topical corticosteroids were used to treat his symptoms on a constant or near constant basis. Other topical medications included ammonium lactate/urea /over the counter antifungal creams/over the counter cream on a constant or near constant basis. No debilitating or non-debilitating episodes were reported. A physical examination revealed dermatitis impacting 5 to 20 percent of the total body and exposed area. infections of the skin impacted less than 5 percent of the total body and none of the exposed area. Specifically, the Veteran's PFB was described as multiple healed punctate scars involving the entire bearded area. Ichthyosis vulgaris/dermatitis was described as dry itchy skin on the bilateral forelegs. Onychomycosis impacted the right and left 1st, 2nd, and 5th toes with hypertrophied discolored nails. Tinea pedis affecting the bilateral feet was described as macerated, desquamating skin, between the toes, to a limited extent along the metacarpophalangeal (MCP) area and plantar aspect of both feet. No benign or malignant tumors, neoplasms, or metastases were identified. A functional impact was described as minimal. Specifically, the examiner concluded that the Veteran would be unlikely to function well in occupations requiring use of heavy steel toed boots due to nail trauma and possible aggravation of his tinea pedis/onychomycosis. Otherwise, his skin conditions would not prevent sedentary, semisedentary, or light to strenuous physical labor. The examiner further noted that the Veteran has been diagnosed with numerous skin conditions to include eczema, xerosis and ichthyosis vulgaris. On review of the current skin presentation, recent dermatology consultation notes, and relevant medical literature, the diagnosis most appropriate for the scaled appearance of the skin and abnormality distribution, a diagnosis of ichthyosis vulgaris was rendered. In his notice of disagreement, dated November 2016, the Veteran acknowledged receipt of multiple diagnoses of skin-related conditions since his initial claim for service connection in October 2006. As the conditions are separate and involve distinctive parts of the body, the Veteran suggests that the conditions should be separately rated. In a dermatology outpatient note, dated April 2017, a physical examination of the Veteran's face, neck, and lower extremities and feet, revealed lesions impacting the right medial ankle, whitish maceration in the web spaces of the 4th and 5th toes bilaterally, and xerosis of lower legs from knee to foot with tessellating ichthyotic scales. Similar findings were documented in August 2018 and September 2019. Topical creams and solutions were unable to resolve the Veteran's symptoms. Pursuant to a May 2019 Board remand decision, the Veteran's claim was remanded for additional development to include scheduling a new VA examination. On examination in November 2019, current diagnoses included dermatitis/dry skin and dermatophytosis (also listed as Tinea Unguium/Tinea Pedis). Other diagnoses included PFB and stasis dermatitis of the lower extremities. During the clinical interview, the Veteran acknowledged receipt of multiple diagnoses related to his skin condition. Over the previous 12 month period, the Veteran's symptoms have been treated with corticosteroids or immunosuppressive medications to include cryotherapy treatment, Clindamycin 1 percent sol cream, Salicylic Acid 17 percent, Domeboro soak, Miconazole Nitrate 2 percent powder, Clotrimazole cream 1percent, Gentian Violet 1 percent top solution, Terbinafine 1 percent cream. The total duration of use in the past 12 months is 6 weeks or more, but not constant. Dermatitis and dermatophytosis impacts 5-20 percent of the total body and 5-20 percent of the exposed area. Pseudofolliculitis barbae impacts less than 5 percent of the total body area and exposed area. Stasis dermatitis of the lower extremities impacted 5-20 percent of the total body and exposed area. Visible characteristic lesions were observed as hyperpigmented color scars about the chin, white flaky skin between the toes, back, anterior/posterior thighs, and hyperpigmented colored skin on the lower legs with tenderness to palpation. No benign, malignant neoplasms, or metastases were deemed related to the Veteran's skin diagnoses. No other skin conditions causing scaring were identified. No occupational impact was identified. In making all determinations, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Veteran's competence to report on observable symptoms and notes that such statements are generally deemed credible to the extent that they articulate the Veteran's belief that he is entitled to a higher rating. In this case, however, the Veteran's lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his skin condition to include consideration of his contentions as to worsening symptoms. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Upon review of the record, the Board finds that the current severity of the Veteran skin condition does not meet the diagnostic criteria for an evaluation of 30 percent disabling under Diagnostic Code 7813-7806. Under the noted diagnostic codes, a higher evaluation requires characteristic lesions affecting more than 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, over the past 12-month period. The Board observes that the pre-amendment diagnostic codes also requires the presence of characteristic lesions impacting the same percentage of the body or exposed areas. In this case, the Veteran has been afforded multiple VA examinations. At no time has the lay or medical evidence revealed skin symptoms affecting between 20-40 percent of the exposed body or 20-40 percent of the entire body. In fact, none of the VA opinions documented worse than characteristic lesions affecting 5-20 percent if the total body or 5-20 percent of the total body area. Additionally, the record shows that the Veteran has used topical medications and systemic therapy over the previous 12 months, although not on a constant basis. Accordingly, As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Therefore, the Board finds that the Veteran's claim of entitlement to an evaluation in excess of 10 percent disabling for service connected PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis must be denied. 2. Entitlement to separate evaluations for PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis The Veteran contends that he is entitled to separate evaluations for his skin conditions, to include PFB, onychomycosis/tinea pedis, and dry skin claimed as stasis dermatitis. As noted above, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, the Veteran seeks the assignment of separate evaluations for his skin conditions. The Board observes that the primary criteria for evaluating the Veteran's skin disability is determined by the method of treating his symptoms and the percentage of exposed area as well as the total area affected. Review of the record indicates that the Veteran's skin condition has been assigned several diagnoses based upon their impact on various parts of the body. However, as rating his symptoms requires consideration of the percentage of total body area and exposed area affected, rating each diagnosis separately would be duplicative. Therefore, the Board finds that separate disability rating for characteristic lesions impacting the skin on various parts of the body is impermissible. As previously indicated, the VA examiner indicated that the Veteran's various skin conditions have been associated with no worse than characteristic lesions affecting 5-20 percent of the total body or 5-20 percent of the total body area. Additionally, the record shows that the Veteran has used topical medications and systemic therapy over the previous 12 months, although not on a constant basis. As an evaluation of 10 percent disabling has already been assigned as consistent with the examiner's finding, a separate evaluation is impermissible. (Continued on the next page) Accordingly, the Board finds that a preponderance of the evidence is against the assignment of separate evaluation for the Veteran's skin conditions. As the preponderance of the evidence is against any additional disability rating, the benefit of the doubt rule is not applicable, and entitlement to a separate evaluation must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.